« Theology and Canon Law: Journeying Together »
by: Felix Wilfred
Canon law and theology are not polar opposites as is often made out to be, but part of a common journey of the people of God for whose life and growth both of them render distinct services. This indicates the need for close collaboration between them. It hasn’t always been so. There were times when canon law and theology followed parallel paths, or when theology itself was pursued so close to canon law as to be qualified as “juridical theology”; and canon law was followed without theological vision guiding it, resulting in its fall into legal positivism. Without any claim of being exhaustive, let me offer a few reflections on some selected issues and questions that emerge in the relationship of theology and canon law.
When law is viewed as a pre-designed blueprint and expression of the will of the law-giving authority (ordinatio legislatoris), the focus is naturally on the compliance to the norms. A vibrant theology will help canon law to adopt a more dynamic conception of itself, as serving the common good and accompanying the people on their journey of faith, hope and love. Here is both a different presupposition of law and a different theology. That we have moved, as Gaudium et Spes notes, from a static conception of reality to a more dynamic one (GS 4-10) applies also to the realm of law in the Church, and it dovetails with the theological conception of the believing community in movement as a pilgrim people. Church on the move towards the fullness of the Kingdom of God has to constantly shift its tent to new locations with new demands and challenges. When canon law is tempted to strike root, theology needs to show the path ahead and invite it to make the necessary changes which ultimately help the people of God in their journey. Theology and canon law can and should work in tandem. Their cooperation is especially to be seen in interpretation of the laws which enshrine values and ideals which both of them share and the promotion of which, albeit in two different but correlated fields, they have as their tasks.
 Cf. Ladislaus Örsy, Theology and Canon Law: New Horizons for Legislation and Interpretation (Collegeville, Minnesota: The Liturgical Press, 1992). For a different approach, see E. Corecco, The Theology of Canon Law (Pittsburgh, PA: Duquesne University Press, 1992)
 From medieval times, especially from XIII century onwards, a steady antagonism was built between theology and canon law, among other things, on the basis of different positions they held in controversial questions of the time like the issue of Franciscan poverty. The issue often centered on the role canon law sought to play in the ecclesiastical affairs contrary to what theologians of the time held. See, Takashi Shogimen, “The Relationship between Theology and Canon Law: Another Context of Political Thought in the Early Fourteenth Century” in Journal of History of Ideas vol. 60, no. 3 (1999): 417-431. For a comprehensive synthesis of relationship between theology and canon law in Medieval times, see also, Pier Virginio Aimone, “Il Medioevo”, in Gruppo Italiano Docenti di Diritto Canonico (a cura di), Il diritto canonico nel sapere teologico. Prospettive interdisciplinari(Milano: Edizioni Glossa, 2004): 39-65.
Their working together will be most close and implementation effective when both of them respect the subjecthood of the community and its process of appropriation of laws. This process of appropriation by the people is referred to as reception in Christian tradition. This applies as much to doctrines as to laws in the Church. If there is the sense of the community (sensus fidelium) in professing faith about which theology speaks, it is to be expected that the laws that bind them need to also vibrate with this sense of the faithful, and find reception among them. That is the best way also to see to the most effective implementation of the laws which will not be seen as an imposition from without (heteronomy) but self- binding laws (autonomy) of the community meant to help produce rich fruits of love, faith and hope in a common life of communion.
Canon law need to function under the theological horizon. There is something like hierarchy of truths about which Vatican II spoke (UR 11) and which facilitated the ecumenical initiatives and endeavours in the post-conciliar period. It would be an unrealistic and strange claim if all canons are placed at the same level, or, if each is accorded equal importance. If one were to argue that they all come from the same legislator would be simply to claim formal authority for them without reference to the subject matter they deal with, and the degree of their closeness to the central values and ideals the believing community pursues. Some canonical directions on matters of worship may not be placed on par with issues of the equal dignity of all believers and issues of natural justice. This tells us also about the need for canon law to distinguish the grade of authority attached to the different teaching of truths. The fact of the same legislator does not warrant attribution of equal grade to the laws without distinction.
2. Canon Law and the Balancing of Faith and Reason
In the history of canon law, there has been two major trends, namely to view it as ordination rationis (an ordering according to reason) or view it as ordinatio fidei (an order according to faith). It is similar to a major problematic encountered in the history of theology, namely the relationship between faith and reason. For anything to qualify itself as law, it should conform to the standards of reason and contribute to common good. This would save canon law from arbitrariness and authoritarian imposition. Applying today the standard of reason – which faith is not expected to contradict – would mean that the laws of the Church be such that they do not go against or undermine human dignity and basic human rights, that there be equality, fairness and natural justice and that there be no discrimination on gender basis. All these form part of universal human rights of which humanity has become increasingly conscious. Canon law cannot argue in the name of faith and justify violation of any of these fundamental questions common to human family. This has been strongly bolstered up by Vatican II through a theology of creation in its Pastoral Constitution on the Church in the Modern World. If canon law violates any of these things invoking faith in its support, its (canon law) very legitimacy as a legal instrument upholding justice may be seriously in question. Canon law requires a robust theology that can help it avoid many pitfalls. On the other hand, since the people of God is a community of faith, naturally, the faith-element needs to get reflected in its legal arrangement and ordering. Otherwise canon law would remain merely at the formal level and will be imprisoned within legal positivism.
 Cf. Thomas Aquinas, Summa Theologiae I-II, q. 90, a.4c.
 This latter trend finds its finest expression and evidence in the present code and the apostolic constitution Sacrae Disciplinae Leges (25 Jan 1983) with which Pope John Paul II had promulgated it. That the law of the Church must reflect the image of the Church as much as possible corresponds to the function of law in the Church (cf. AAS 75 (1983) vii-xiv), notwithstanding the fact that often it is difficult to render faith related doctrines into corresponding canonical arrangements in their entirety. Cf. Jean Beyer, Il Codice del Vaticano II. Dal concilio al codice Bologna: (EDB, 1984), 7.
3. Ius Divinum – A Common Theological and Canonical Issue
The nature and binding force of law in canonical tradition have been made to depend on whether a legislation enshrines something deriving directly from divine ordering (ex ordinatione divina, ius divinum) or whether something is legislated by the Church for the purpose of common good. The lack of clarity in this matter is seen clearly in comparing the code of 1917 and the code of 1983. Instances where the former referred something as deriving from divine ordering have been deleted when they were reformulated in the code of 1983, and at the same time the new code introduces new canons of “divine law” or “divine institution” (which generally includes in the canonical tradition matters viewed as belonging to “natural law” as well), obviously with the claim of higher grade of authority. To cite just one example, the code of 1917 speaking of the juridical power of hierarchy in canon 108 states that it consists of papacy and “of subordinate episcopacy” (episcopatu subordinato), and this is supposed to derive from divine institution (ex divina institutione). In the light of the teaching of Vatican II on episcopacy and on the relationship of papacy and episcopacy, the new code instead sees episcopacy in the light of collegiality. This collegial unity following the relationship of Peter and the rest of the apostles is seen in Lumen Gentium (no. 22) as coming “from the will of the Lord” (statuente Domino), and subsequently codified in CIC can.330. Here is a case of canon law following development in theology, to the extent of abrogating in the code something which was once held to be of divine law. It is also interesting to observe how the use of divine right argument gets redefined in a new perspective in the light of theology. To cite an example, canon 948 of 1917 invokes the authority of Christ (ex Christi institutione) to establish the distinction between clergy and laity, whereas the code of 1983 follows the spirit of the people of God theology, states that some among the people of God are chosen to serve and shepherd the flock and this is by divine institution (canon 1008). As we could see there is a difference in perspective and difference in accent in the use of divine law, underlining once again how important it is for canon law to follow closely theological developments and nuances.
 CIC 1917 Can. 108 §3. Ex divina institutione sacra hierarchia ratione ordinis constat Episcopis, presbyteris et ministris; ratione iurisdictionis, pontificatu supremo et episcopatu subordinato; ex Ecclesiae autem institutione alii quoque gradus accessere.
 For further examples see Joseph J. Koury, “Ius Divinum as a Canonical Problem on the Interaction of Divine and Ecclesiastical Laws” in The Jurist 53(1993): 104-131.
But there is a deeper problem in the distinction between the divine law and ecclesiastical law. Canon law may not unilaterally decide upon this matter but has to seek the help of theology which has to deal with this grey area where clear demarcations between the two are not an easy matter. Ironically, in the theological tradition too there has been no unanimity in this matter in every case. Just imagine that between XI – XIV centuries the institution of cardinalate was viewed as coming from divine command (ius divinum cardinalatus) and the cardinals were seen by some as “sharing in the fullness of papal power and succeeding the apostolic college” (not the bishops)!
 For a brief historical context of the cardinals of the Holy Roman Church, see John P. Beal –James A. Corriden – Thomas J. Green, eds., New Commentary on the Code of Canon Law (New York: Paulist Press, 2000): 464-466, p. 465.
Further, if we were to argue on the basis of antiquity of traditions and practices in support of claim for divine right, we need to be attentive to the fact that some of these traditions have been viewed as of divine disposition whereas other traditions and customs are looked at as having been conditioned by the culture and context of the times. In the absence of clarity in this matter, legitimate questions can be raised about crucial issues like the matter of sacraments, and the non-ordination of women – whether they are of divine command or something to do with the culture and traditions of the New Testament times. There is a strong argument for change in this matter, given the fact that in the history of Christianity, what was thought once as of divine right, was subsequently not held so. All these considerations are important also in view of ecumenical relationships in which categorical claims of divine right have been a serious obstacle. Again theology could be of great assistance to canon law in order for it to become sensitive to issues of ecumenism.
4. Issues of Discrepancy
There are questions where theology opens up new horizons for canon law, and yet this vision gets narrowed down in legislation, bringing about some serious inconsistency that affect renewal and innovation in the Church. By way of example, I am referring here to the question of power of governance and the question of election of bishops.
According to CIC canon 129, power of governance, called also as power of jurisdiction, is to be exercised by those who are constituted in sacred orders, namely, the episcopate, the priesthood and the diaconate, whereas the laity can only cooperate (ad normam iuris cooperari possunt) in the former’s exercise of the power of governance. The argument for the legitimate exercise of power of governance derives from the fundamental reality of baptism in which independent of the state (clerical or lay) all the believers participate in the priestly, prophetic and kingly mission of Jesus. Moreover they are endowed with different charisma and gifts for the life of the community. To this we could add the pastoral argument of the actual exercise of power of governance today in numerous Christian communities and parishes which are directed by laypersons who exercise in practice power of governance; the historical argument of traditions in Christian history of lay exercise of jurisdictional power with emperors convoking councils, laity functioning as legates of the pope and even as Cardinal secretary of the state, not to mention the role of abbots and abbesses in medieval times exercising power of governance over their subjects and administering properties. Nothing then, theology, history nor actual practice, stand against the exercise of the jurisdictional power by the laity. Canon law has little to invoke in support of its present position of negation of this power to the laity.
One may try to find a theological argument in the fact that according to the teaching of Vatican II, the bishop through their consecration receive not only the office of sanctifying and teaching, but as well the office governance. This is a teaching whose importance lies in the fact that the office of governance is not additionally granted by the pope, which could make them appear as officers of the pope. By rooting the power of the bishop in the sacrament, the Council has brought to balance the relationship between episcopacy and primacy. The same, however, should not be extrapolated in the relationship of the laity and clergy, to argue that because they do not have ordination, the laity therefore do not have the power of governance. This is to wrongly apply a teaching culling it out of context, and to completely misunderstand the spirit and teachings of Vatican II. On the other hand don’t the Christian faithful by virtue of baptismal consecration participate in the kingly (governance) office of Christ, as they do in his priestly and prophetic role?
 James A. Coriden, “Lay Persons and the Power of Governance” in The Jurist 59 (1999): 335-347; see also Hubert Wolf, Unterdrückte Traditionen der Kirchengeschichte (München: Verlag C.H. Beck, 2015): 145-157.
 It is true that the Nota Explicativa Praevia no.2of Lumen Gentium specifies that in order for the office of governance to be exercised in concrete, “a canonical or juridical determination” by the pope is required. There are some canonists who bank on this explanatory note to fall back on the pre-Vatican theology of episcopate and to hold that the power of jurisdiction comes as canonical mission from the pope. For example, R. J. Bower says that “the power of orders is conferred by sacramental ordination; (and) the power of jurisdiction, except for papacy, by canonical mission” R. J. Bowers, Episcopal power of Governance in the Diocesan Church: from the 1917 Code of Canon law to the Present (Washington D.C: The Catholic University of America,1990): 5. This, I think, is simply to take away the novelty of the teaching of Vatican II. An explanatory note is an explanatory note and nothing more, and it cannot supplant the central teaching of Vatican II found in the main body of Lumen Gentium stating the sacramental foundation of Episcopal power of jurisdiction.
Selection of bishops is another issue in which tradition and theology are open but canon law does not correspond to them, nor to the contemporary sensitivities. The entire people of God, clergy and laity were involved in the election of bishops in early Church, up until 12th century. Within this general frame, there was a plurality of modalities in choosing the bishop. Historical facts are well-known and do not need elaboration. And yet, canon law is stuck with a model in which, there is hardly any role to the laity and the process is largely done by the papal legate. It contradicts the principle of subsidiarity and the theology of the local Church as envisaged by Vatican II. Worse is the case when bishops are so to say “air-dropped” for career promotions without any consultation with the local bishops, not to speak of the laity. It is truly an insult to the local Church.
While the Eastern Code opens for a more participatory mode of selection of bishops with its synodal structure, how come that the Latin code legislates differently and in a centralized manner? The question becomes anomalous when in the same socio-cultural territory like India, the Oriental Bishops follow participatory model, as per the Eastern Code (cc.181-189), whereas the Christians of Latin Church living in the same territory sharing the same conditions of life, are deprived of such a participation. We can only pity the papal nuncios many of whom, in spite of their best intentions, are not in a position to assess the situation of the local Churches often with their lack of familiarity with the culture, language, life-situation and history of the people, and yet expected to play crucial role in the selection of bishops. The participation of the people in the selection of bishops, as John Huels and Richard R. Gaillalrdetz note, may not be dismissed as utopian and impractical. That is to ignore history. To counter such an argument and attitude, these authors have formulated new canons to show how this could take place concretely.
 For a synthetic overview, see George Nedungatt, ed., A guide to the Eastern Code. A commentary on the code of Canons of the Eastern Churches, Kanonika 10 (Roma: Pontificio Istituto Orientale, 2002): 229-231, 641-647.
 Cf. John M, Huels – Richard R. Gaillalrdetz, “The Selection of Bishops: Recovering of the Traditions”, in The Jurist 59 (1999): 348-376, p. 368 f.
5. Contextual Theology and Particular Laws and Customs
Theological pluralism derives from reflections on the life of faith as lived in different cultural, geographic and historical contexts in which people of God find themselves. In the post-conciliar period we have witnessed very rich and vibrant theologies emerging from Africa, Latin America, Asia and Oceania. If theology is to assist the life of faith and make it fruitful relating it (faith) dynamically to contemporary experiences in context, then, we cannot have a rigidly legal arrangement which is fixated and centralized.
Failure to respond to new developments in the Church and in the world, results in our going ahead with legislations on issues and questions that have become obsolete. Penance is something so very much part of Christian faith and life. However, the mode of penitence could undergo changes. It is increasingly becoming evident that auricular confession has been in the process of disappearing for the last few decades, and could get extinct soon. And yet to devote no less than 33 canons to legislate on auricular confession (canons 959-991) with the obligation of the faithful “to confess, in kind and in number all grave sins committed after baptism” (can. 988) could make appear belaboring on obsolescence. On the other hand, no one could claim that auricular confession is of divine right. To cite yet another example, the preparation for clerical ministry needs significant changes, so that candidates are trained in such a way as to be able to respond to the challenge of our times and indeed in different geographical regions. And yet, we have 33 canons (232 -264) dealing with “formation of clerics” that have already become obsolete, and which show no sensitivity to changing times and new demands of ministry. Here theology has the role to help canon law to “read the signs of the times” and help in the process of abrogation of obsolete laws, formulating new ones having in mind the changing times and life of the Christian communities.
The code of canon law with its centralizing tendency bears many traces of the Roman law and medieval laws of Western society, raising questions thereby about the suitability of several of those legislations in widely different cultural environments. More basically, there is a difference in the understanding of and attitude towards law itself. Further, translation into practical action of a theology that springs from context, calls for laws and regulations that bespeak to the people and are convincing to them for the values and ideals they want to uphold. Unfortunately, there is often a dissonance between theology that wants to be a vital force and a canon law which does not address dynamically the needs of the local community and its specific questions and concerns. It has the consequence of causing ruptures within the community and thus undermining the witness potential of the Gospel which both theology and canon law are expected to promote in their journey together. Hence, the importance of developing, similar to contextual theologies, also local customs and particular laws.
However, as it is, there is little scope in the present code for such contextualization of law in the local Churches. In the Latin code, the legitimacy of these customs are made to depend on the approval of them by the legislator, universal and particular, as the case may be (can. 23). The corresponding canon 1506 §1 of the Eastern Code seems to be more open: “The custom of the Christian community, insofar as it responds to the action of the Holy Spirit in the ecclesial body, can obtain the force of law.”
History of the Church in early period tells us that the different families of Churches were autonomous (self-governing) – with their own laws and regulations – while maintaining vividly the communion of Churches. Medieval times saw innumerable customs and traditions flowing from the life of the local Churches which acquired binding force in the local context. As Andrea D’Auria contends customs, in fact, enrich the pluriform nature of the ecclesial juridical system, nurture inculturation of ecclesial laws, supply in the wake of lacuna legis, and above all else, foster the building of the Christian community under the guidance of the Holy Spirit. With increasing sense of pluralism characterizing the life of the Church in every sphere, it is inevitable that there be also legitimate space for customs and other particular laws in the Churches. Even more, from a long-range perspective we could envisage the emergence of new sui iuris Churches (individual Churches) similar to the patriarchal Churches of the past. In fact Lumen Gentium 23 speaks in the same breath of the patriarchal Churches of ancient times and of contemporary conferences of bishops (regional, national or continental).
For the emergence of new sui iuris Churches eventually within the large Western patriarchate with their own canonical structures, the present local Churches need to have already the spaces of freedom and necessary autonomy. This would significantly change the nature and functioning of the existing body of laws in the Church and their implementation to pave way for the projected future. In this context, the tendency to water down the theological and juridical status of groupings of bishops into conferences, regional bodies etc. cannot but be viewed as a retrogressive step going against the spirit of Vatican II. There needs to be a lot of freedom for the local Churches to develop their forms and ways of worship which would provide the potential for the development of new rites, since as we know from history liturgical rite was an important component in the formation and development of sui iuris Churches from the early times. In fact Sacrosanctum Concilium (no. 4) not only speaks of the existing rites but is worded in such a way as to open the possibility of new rites in the Church. According to the Code of the Eastern Churches, “a rite is a liturgical, theological, spiritual and disciplinary heritage, differentiated by the culture and the circumstances of the history of peoples, which is expressed by each Church sui iuris in its own manner of living the faith” (Canon 28 §1). In all these issues, theology could play a very constructive role in interpreting Vatican II and helping canon law to look towards the future and become more flexible and context-sensitive.
 A comparison with the Code of the Eastern Churches will substantiate this. See Frederick R. McManus, “The Code of Canons of the Eastern Catholic Churches”, in The Jurist 53 (1993) 22-61; ID., “The possibility of New Rites in the Church”, in The Jurist 50 (1990) : 435-458.
 Cf. Felix Wilfred, “Episcopal Conferences – Their Theological Status” in Peter Fernando (ed.), Episcopal Conferences and Collegiality (Delhi: CBCI Commission for Clergy and Religious, 1989) 3-26.
Under the influence of legal positivism, which has a univocal theoretical understanding of law, canon law cannot write off the important role theology needs to play today for a meaningful interpretation of laws governing the community of believers. Canon law is, then, faced with the difficult challenge of reconciling between its nature as a legal instrument (making it akin to any legal system) and the imperative need to be guided by a theological vision. Another dilemma canon law faces is to reconcile between the demands of justice which it is expected to uphold and the Gospel injunction of mercy which any genuine theology will keep in sight. Canon law cannot afford to loose the delicate balance that is desired.It is obvious that we may not expect laws of the Church as vehicles for the proclamation of the truths of Christianity. However, there would be no justification for any canonical provision unless it is also the vehicle of a value or ideal to be put into practice. That makes the constant dialogue between theology and canon law an imperative necessity. Self-insulation of canon law could turn it blind to values theology promotes, and a theology that is not oriented to the concrete Christian praxis could end up in a world of abstraction dealing with concepts. The best course for the future is then continuous dialogue between theology and canon law as they move along with the people of God in their journey to the fullness of the Kingdom of God.
Felix Wilfred is founder-director of the Asian Centre for Cross-Cultural Studies, Chennai. Earlier he was the Dean of the Faculty of Arts and Chairman of the School of Philosophy and Religious Thought, at the State University of Madras, India. Since 2007, Prof. Wilfred is the President of the International Theological Review Concilium. He was a member of the Vatican International Theological Commission, then chaired by Cardinal Joseph Ratzinger. He was on deputation by the government of India as ICCR Professor of Indian Studies, Trinity College, Dublin, Ireland. Recently he edited a landmark volume: The Oxford Handbook of Christianity in Asia, published by Oxford University Press, New York. He is also the chief editor of the International Journal of Asian Christianity (IJAC 2017), published by Brill, Leiden, The Netherlands.