Canon Law: A Comparative Study with Anglo-American Legal Theory

247 Pages·2010·0.93 MB·English

by  John J. Coughlin O.F.M.

canon law
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canon law
a comparative study with
anglo-american legal theory

john j. coughlin, o.f.m.
1
1

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Library of Congress Cataloging-in-Publication Data
Coughlin, John J., O.F.M.
Canon law : a comparative study with Anglo-American legal theory / John J. Coughlin.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-537297-7 ((hardback) : alk. paper)
1. Canon law. 2. Common law. 3. Catholics—Legal status, laws,
etc.—United States. I. Title.
KB243.C68A33 2010
262.9—dc22 2010019792
______________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper
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In Piam Memoriam
Honorable Frank X. Altimari
Judge of the United States Court of Appeals for the Second Circuit
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contents

Preface and Acknowledgments xiii
Abbreviations xvii
introduction 1
I. Antinomianism and Legalism 3
II. Comparative Law and Anglo-American Legal Theory 6
III. Canon Law and the Rule of Law 10
chapter 1 an overview of canon law 17
I. Examples of the Scriptural and Historical Origins of
Canon Law 17
A. Via Negativa 18
B. The Juridical Form of Community, Sacrament, and
Mission in the New Testament 21
C. Paul of Tarsus: Law and Spirit 24
D. The Council at Jerusalem 26
E. The Patristic Church of Northern Africa 28
F. The Medieval Canonists 31
II. Contemporary Canon Law and the Rule of Law 35
A. Twentieth-Century Codifi cations 35
B. Other Sources and Types of Canon Law 38
1. Legislative, Executive, and Judicial Power 38
2. Universal and Particular Law 41
3. Custom as a Source of Law 42
4. International Law 42
5. The Canonization of Civil Law 43
6. Liturgical Law 44
C. Canonical Equity, Dispensation, Exception, and
Privilege 44
1. Canonical Equity 44
2. Dispensation, Exception, and Privilege 46
D. The Unity of Law and Theology 48
viii contents
chapter 2 canon law and the sexual abuse crisis:
antinomianism, legalism, and the failure of the rule
of law 51
I. The Failure of Canon Law in Responding to Clergy Sexual
Abuse Cases 52
A. Canonical Provisions for the Investigation, Adjudication,
and Resolution of an Allegation of Clergy Sexual Abuse of
a Minor 52
B. Statistical Evidence and Canon Law 56
C. Diffi culties with the Canonical Process 58
II. The Failure of the Rule of Law: Antinomian and Legalistic
Approaches 65
A. Antinomianism and Legalism during the Nineteenth
Century 65
B. Post–Vatican II Antinomianism: The Psychological
Approach 67
C. The Legalist Response 72
chapter 3 canon law and the sexual abuse crisis continued: the
consequences of the failure of the rule
of law 75
I. The Canonical Requirement of Celibacy and the Sexual Abuse
of Minors 75
A. Clerical Celibacy: Witness to Faith or Threat to the Public
Good? 75
B. The Sexual Abuse Crisis and American
Anti-Catholicism 81
II. Canon Law and Theology 84
A. Original Sin and the Limitation of Law 84
B. Law and the Theology of Forgiveness 85
C. Priesthood as a State of Life 88
III. Antinomianism, Legalism, and the Nature of Canon Law 90
chapter 4 church property: a comparison of the theories of
property in canon law and liberal theory 97
I. Elements in Canon Law’s Approach to Property 97
A. Anthropological Basis for Private Property 98
B. The Fall and Private Property 100
contents ix
C. The Early Church 101
D. Medieval Theory 104
E. The Social Teaching of the Church 108
II. Property in Liberal Political Theory 109
III. Comparison of Catholic and Liberal Theories of
Property 112
chapter 5 church property continued: the diocese and parish;
canon law and state law 115
I. The Diocese and the Parish 116
A. The Unity of Law and Theology 117
B. Parish Property in Canon Law 122
II. Congregationalist v. Hierarchical Forms of Church
Governance 124
III. Canon Law and State Law 129
A. The Harmony of State and Canon Law 130
B. The Relationship between Diocese and Parish in State
Law 132
IV. Antinomian and Legalistic Approaches to Church
Property 133
chapter 6 indeterminacy in canon law: the refusal of holy
communion to catholic public officials: canon 915:
“a central case” 139
I. Canon 915 and Indeterminacy 141
II. The Rule of Recognition and the Internal Aspect of Law 145
A. The Rule of Recognition and Canon 915 146
B. The Internal Aspect of Law and the Application
of Canon 915 149
III. The Open Texture of Law: A Central Case 151
A. The Plain Meaning 152
1. “Are Not To Be Admitted” 152
2. “Manifest Grave Sin” 152
3. “Obstinately Persists” 154
B. The Justifi cations for the Application of Canon 915 155
C. Effects of Canon 915 155