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:
First, both canon law and liberal theory recognize the right to private property. Both understand the right as essential to human flourishing for somewhat different reasons. Liberal theorists would not necessarily dispute Thomas Aquinas’s three justifications for private property, which are applicable to religious and secular societies alike. According to Thomas, the right to private property serves to offer incentives for human productivity, care of property, and the avoidance of property disputes. However, there is a difference between canon law and liberal theory about the source of that right. The anthropological foundation for private property in canon law suggests that the right reflects the nature of the human person . . . . According to the theological understanding private property is a consequence of human nature after the Fall, but not part of human nature as it was originally created by God . . . . The right of private property in canon law is limited by the theological concerns about evangelical poverty and common ownership. Liberal political theory developed in separation from divine revelation, and consequently, the political theory was not concerned with the theological ideals . . . . In liberal theory, the state creates the right in order to set the conditions which are most advantageous to the greatest number of individuals. The right to private property may be more absolute in liberal theory than it is in canon law . . . .
Second, [canon law and liberal theory] reflect[] different anthropological conceptions. Canon law assumes an understanding ot the human person as one who is essentially social in nature and who discovers fulfillment through participation and solidarity with others. This anthropological understanding differs from the image of contractarian individualism in the pristine version of liberal theory . . . .
Third, the comparison of the approaches to property in canon law and liberal theory points to diverse definitions of freedom. The theological element in canon law includes the gospel preference for poverty. Canon law reflects the theological view that the intentional renunciation of property may facilitate human freedom . . . . Not endowed with the theological meaning, liberal theory maintains a close nexus between the right to own property and individual freedom . . . .
Finally, canon law exhibits trust in ecclesiastical authority to direct the use of the church property so that the property serves the mission of the church. Liberal theory, of course, neither shares the church’s mission nor recognizes an ecclesiastical office vested by divine authority to discern how best to implement that mission . . . . (112-114)
There’s much, much more in this excellent book. — MOD [x-posted MOJ]