Posted on by Mark Movsesian

Valliere, “Conciliarism”

Where does authority lie in the Christian church? Who has the ultimate say on canons and doctrine? These questions have preoccupied Christianity pretty much from the beginning, and one traditional answer has been the “ecumenical council,” a collection of bishops from around the world who convene to consider disputes about theology and practice. The most famous such council was the Council of Nicea in 325 A.D., which fixed the date for Easter and issued the historical Christian creed that bears its name. (The council was called by a pagan emperor, Constantine, a fact that itself opens the door to interesting questions about church-state relations). Human nature being what it is, Christians fairly quickly fell into debate about which councils were in fact ecumenical and binding. For Oriental Orthodox Christians, there have been three, the latest of which convened in the fifth century; for Eastern Orthodox, there have been seven, the latest of which convened in the eighth century; for Catholics, there have been 21, the latest of which, Vatican II, ended only in 1965. Protestant Christians, who have a much looser concept of the church, typically do not vest the councils with as much importance.

All of this is background for what looks to be an interesting new book by Butler Professor Paul Valliere, Conciliarism: A History of Decision-Making in the Church (Cambridge 2012). The publisher’s description follows:

Conciliarism is one of the oldest and most essential means of decision-making in the history of the Christian Church. Indeed, as a leading Orthodox theologian Alexander Schmemann states, ‘Before we understand the place and the function of the council in the Church, we must, therefore, see the Church herself as a council.’ Paul Valliere tells the story of councils and conciliar decision-making in the Christian Church from earliest times to the present. Drawing extensively upon the scholarship on conciliarism which has appeared in the last half-century, Valliere brings a broad ecumenical perspective to the study and shows how the conciliar tradition of the Christian past can serve as a resource for resolving conflicts in the Church today. The book presents a conciliarism which involves historical legacy, but which leads us forward, not backward, and which keeps the Church’s collective eyes on the prize – the eschatological kingdom of God.

Posted on by Mark Movsesian

Vatican Office Rules American Bishop Wrongly Closed Parishes

According to news reports, a Vatican office has taken the extraordinary step of overruling a bishop’s decision to close 13 parishes in his diocese. The Bishop of Cleveland, Richard Lennon, ordered the parishes closed as part of a diocesan downsizing three years ago. Parishioners challenged the closings as violations of canon law, and yesterday the Congregation for the Clergy, an office in the Roman Curia, ruled in their favor. According to the parishioners’  lawyer, the Congregation held that Bishop Lennon had failed to follow the canonical procedure for closing parishes, for example, by neglecting to consult clerical advisers and issue a formal decree. Bishop Lennon may now appeal to the Vatican’s high court. This week’s ruling is yet another example of the growing interest in canon-law litigation in the Catholic Church.

Posted on by Mark Movsesian

Careers in Canon Law?

A thousand years ago, Catholic canon-law courts had an active docket and an extensive jurisdiction that covered contracts, property, torts, and much else. Over centuries, in a process Harold Berman famously described in Law and Revolution, the docket dwindled and the jurisdiction contracted. As a result of secularization, church courts lost most of their jurisdiction and importance  in Catholic life. Nowadays, canon-law courts  are reserved principally for marriage annulments.

According to an AP story this week, though, things may be starting to change, at least in the United States. The AP reports on  a significant recent rise in litigation before church courts. Some litigation involves  priests accused of sex abuse, but much concerns everyday matters like parish closings, use of church property, even complaints about non-liturgical music. More and more, it seems, Catholics see church courts as the proper place to air their grievances and seek redress. In fact,  something of a new practice area seems to be developing. The AP story describes the practice of attorney Michael Ritty from upstate New York, who employs three lawyers in his canon law firm.  A small practice, to be sure, but indications are the field is growing. “‘Most of us, when we were training, were preparing for marriage tribunals, marriage annulments,’ said Monsignor Patrick Lagges of Chicago, a canon lawyer for three decades….  ‘Now there’s such a broad range of things. It’s a much broader field.'”

Posted on by Marc O. DeGirolami

Coughlin, “Law, Person, and Community”

Another wonderful looking book for those interested in jurisprudence and comparative canon law studies by Fr. John Coughlin (Notre Dame), Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law (OUP 2012).  For Coughlin’s other recent book about canon law, see here.  The publisher’s description follows.

Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law takes up the fundamental question “What is law?” through a consideration of the interrelation of the concepts of law, person, and community. As with the concept of law described by secular legal theorists, canon law aims to set a societal order that harmonizes the interests of individuals and communities, secures peace, guarantees freedom, and establishes justice. At the same time, canon law rests upon a traditional understanding of the spiritual end of the human person and religious nature of community.

The comparison of one of the world’s ancient systems of religious law with contemporary conceptions of law rooted in secular theory raises questions about the law’s power to bind individuals and communities. Professor John J. Coughlin employs comparative methodology in an attempt to reveal the differing concepts of the human person reflected in both canon law and secular legal theory. Contrasting the contemporary positivistic view of law with the classical view reflected in canon law, Law, Person, and Community discusses the relationship between canon law, theology, and natural law. It also probes the interplay between the metaphysical and historical in the theory of law by an examination of canonical equity, papal authority, and the canon law of marriage. It juxtaposes the assumptions of canon law about church-state relations with those of the modern liberal state as exemplified by U.S. first amendment jurisprudence. No scholarly work has yet addressed this question of how the principles and substance of canon law, both past and present, relate to current issues in legal theory, such as the foundation of human rights and in particular the right of religious freedom for individuals and communities.  

Posted on by Marc O. DeGirolami

Coughlin’s “Canon Law”

Readers interested in an introduction to Roman Catholic canon law should find Canon Law: A Comparative Study With Anglo-American Legal Theory (OUP 2011), by Rev. John J. Coughlin, O.F.M. (Notre Dame law school) a very useful book.  Fr. Coughlin sets up a comparison of three approaches to canon law: antinomianism, legalism, and one based in the rule of law, and he defends the last of these against the other two.  One of the worthwhile things about Fr. Coughlin’s methodology is that, as the title indicates, the book offers a comparative perspective with 19th and 20th century philosophy of law (represented in the tradition beginning with John Austin and proceeding through to Hart, Raz, Finnis, and also Rawls). 

Particularly interesting in this respect is Chapter Four, in which Fr. Coughlin compares theories of property ownership in canon law and liberal philosophy.  After an illuminating discussion tracing the historical views in each tradition, he says: Read more

Posted on by Mark Movsesian

Catholic Bishops in England and Wales Restore Meatless Fridays

Starting today, Catholic bishops in England and Wales have restored the centuries-old tradition of asking believers to abstain from meat and offer prayers on Fridays as an act of common penance.  The bishops argue that abstaining and praying in a communal way will encourage penitence and solidarity with the suffering and also serve as a mark of Catholic identity in the wider society.  The bishops’ explanation of the new policy, first announced last spring, is here.

There are many angles to this story – theological, sociological, even political – but CLR Forum readers will likely find the legal aspects most interesting.  As a legal matter, the bishops’ reasoning goes like this.  The canon law of the Catholic Church provides that, for Latin-Rite Catholics, “[a]ll Fridays through the year … are penitential days … throughout the entire Church” (Canon 1250).  Particular forms of Friday penance are prescribed by local bishops (Canon 1251).  For centuries, the bishops had prescribed meatless Fridays as the form penance should take, but in 1985 they decided to allow Catholics to substitute other forms of penance.  The bishops’ new decision, which that takes effect today, restores the earlier practice.  – MLM

Posted on by Marc O. DeGirolami · 1 Comment

Brundage’s “The Medieval Origins of the Legal Profession”

The legal profession as we know it today was born between the 12th and 13th centuries in Europe, and most especially at the University of Bologna.  The new lawyers practiced in church courts — indeed, as James Brundage notes in his magnificent study, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago Press 2008):

[P]rofessional lawyers first emerged in the courts of the medieval church.  Practitioners in civil courts that employed the procedural system of the ius commune [the common, learned law] quickly followed suit and adopted procedures that resembled those already introduced in the ecclesiastical courts.  Development of a professional identity among the canonists thus seems to have supplied a model that other professional groups, such as English common lawyers and university-trained physicians, adapted to their own needs and purposes.  (3)

The term “profession,” Brundage argues, had religious roots “connected with making a solemn promise or undertaking” — as in the phrase, “a profession of faith” — and “[m]edieval lawyers were undoubtedly aware of these religious connotations of ‘profession’ when they used the term professio advocatorum, familiar to them from Roman legal sources, to describe themselves and their colleagues.” 

It is not often that the connections between religion and the idea of law as a profession — and therefore of the notion of professional responsibility — are probed in such keen detail.  I found Chapter 7 of the book, dealing with the advent in the 13th century of formal professional admission procedures and the swearing of an oath to observe a set of ethical rules concerning the new lawyers’ interactions with clients and courts (with concomitant Church sanctions for failure to comply), particularly interesting.  I am not teaching Professional Responsibility this year, but in the past I assigned selections from Tocqueville dealing with the nature of the legal profession.  If I teach the course again, I will also use chunks of Brundage’s excellent book. — MOD [x-posted MOJ]