The Logic between Canon Law and Civil Law
Laschuk, Alexander. The Role of Canon Law in the Catholic Tradition and the Question of Church and State. 2019. 8 November 2019. <https://www.cardus.ca/research/law/reports/the-role-of-canon-law-in-the-catholic-tradition-and-the-question-of-church-and-state/>.
Laschuk starts by introducing the theological foundations of the early Christians. The article then dedicates a part explaining the meaning of Canon Law, simply defining it as the ordinances and rules which govern the Christian community. The author outlines the Canon Law sources, and according to him, they form in a formalized sense after the first three Christian Church centuries. The article also mentions how the Church decided to update its legal system in a codified and systematic manner. Laschuk writes regarding the Canon Law’s role in the Catholic tradition, such as making of the organic and hierarchical framework of the Church visible, ensuring proper sanctifying function exercise of the Church, and providing rights and techniques of conflict resolution. The author also writes about the state and Church’s roles in the society, civil war canonization, conflict of canon law and civil law, and agreements with states.
This article will help my case as it provides information regarding civil law canonization. The article mentions significant points, such as times when Canon Laws utilize the civil norms, the Church adhering to the Civil Laws, direct impacts of a civil action within the canonical system, how Civil Law becoming Canon Law, as well as the conflict between the two laws.
Apple, James and Robert Deyling. A Primer on the Civil-Law System. Washington D.C: The Federal Judicial Center, 2012. <https://www.fjc.gov/sites/default/files/2012/CivilLaw.pdf>.
The authors of this report begin by providing the development and history of the Civil-Law system, mentioning its very beginning in Rome, Middle-age advancements in Italy, Merchant Law and Canon Law, intellectual advancements, and codification procedure in Germany and France. The second part of the paper is about the system of the Civil Law as it exists as well as its roles in the contemporary era, including the structure of the court, the private-public law dichotomy, the legal procedure, and the legal actors. The third chapter outlines the Common Law, providing a comparison of the Common Law system and that of the Civil Law. In this part, Apple and Deyling talk of the Common Law origins, Common Law jurists, and the differences.
This report is well organized and it is important because it provides information for both the Civil Law and the Canon Law. The development and history of these two laws are crucial, and this article has this information. This paper has identical information regarding the two laws as that of Laschuk.
Nemec, Matúš and Vojtech Vladár. THE ESSENTIALS OF CANON LAW. Trnave: Trnavská Univerzita v Trnave, Právnická fakulta, 2013. <http://iuridica.truni.sk/sites/default/files/dokumenty/zahranicne-vztahy/en/publications/pdf/01Canon%20Law.pdf>.
This book is about Canon Law essentials. The authors start by the introduction of this law, discussing the Catholic Church features and categorization of the objective Canon Law, discussing different criterions, including knowledge source of the law, law author, law formation, obligation, realized interest, and localization. Nemec and Vladár provide the Canon Law sources, the classification and Individual sources, including history sources and positive law sources (general decree, Church law, overall executory decree, rules and statutes, legal custom, civil law, and concordat). The book also incorporates the governance of power and its characteristics, church offices, hierarchical Catholic Church structure, matrimonial law (including canonical marriage celebration form), and criminal law.
Similar to several other sources I have utilized, this source has provided similar backing up information of mainly Canon Law,. It also mentions Civil Law as a source of individual positive law of Canon Law. The book is also useful as it has explained several terms of theology which are relevant to the Canon Law. It is imperative in comparing and cotrasting the two.
Davies, E. FOUNDATIONS OF LAW. Grahamstown: Rhodes University, 2019. <https://www.ru.ac.za/media/rhodesuniversity/content/law/documents/FOUNDATIONS_OF_OUTLINE_2019.pdf>.
Titled “Sources of Law”, this report begins by mentioning these laws, namely Common Law, including Roman law (Canon Law, XII tablets, Praetorian Edict, Justinian’s codification, Aedilitian remedies, commentators), English Law, Roman-Dutch Law, and South-African common law. There are also constitutions, legislation, and judicial precedents. Other two are custom and indigenous law. The author goes on to outline each of the sources of law listed. Under Canon Law, she talks of what Canon Law is all about and how it came to be. Davies also mentions the impacts of Canon Law on Roman Law development and provides an example of Canon Law still being used in South Africa.
This source is important as it has explained the many different types of sources of law, differentiating each of them in the process. The source mentions how different the Canon Law operates when compared to the other laws. The author has also summarized how the Canon Law developed and some of its influences on the development of Roman Law.
McSweeney, Thomas. “Magna Carta, Civil Law, and Canon Law.” Magraw, Daniel, Andrea Martinez and Roy Brownell II. MAGNA CARTA AND THE RULE OF LAW. Virginia: William and Mary Law School, 2014. <http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2898&context=facpubs>.
This book starts by looking into how the Canon Laws impacted the Magna Carta, and how the making of canons for the Church’s reform took place. It talks of how Canon Law developed and how it was incorporated into the Western Church. McSweeney mentions how Canonists and Romanists borrowed each other’s doctrines and researched one another. He asserts that Magna Carta is a significant part of the tradition of Common Law; hence, it is crucial to study the level in which the Canon and Roman Laws impacted the Common Law of Anglo-America. McSweeney names the most significant historians involved and the borrowing styles utilized. The book then outlines Canon Law and the Church reform politics. Lastly, the author writes about the impacts of legal practice.
This book looks deeply into the Canon Law, going back to the reasons why it might have been adapted in the first place. According to the author, Canon Law was more of a resolution attempt used in the 1200s, a significant point to note. It is also useful as it explains ways the two laws were applied in the society and the Church.
Burger, Michael. The Shaping of Western Civilization: From Antiquity to the Present. Toronto: Univerity of Toronto Press, 2013.
This book provides the foundations of Western civilization, mentioning the origins and prehistory of civilization, culture and government, monotheism and polytheism. The author also writes about the classical, archaic, and Hellenistic Greeks. It also talks of Rome and how it became an empire from being a republic. The author also looks into the fall of Rome, the early and late median ages, and the early modern West (reformation, the consolidation, Christendom’s end, as well as the society, science, and state).
Under nature, reason, and the self (fifth chapter), the author writes of how the Church faced challenges during the incorporation of Canon Law into their system. The author writes of how Canon Law lawyers advocated for its uses, whereas other unconventional figures chose to stick to traditional laws.
Coughlin, John. Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law. Oxford: OUP USA, 2012.
The source has provided more details of the Canon Law. Coughlin provides details about Canon Law and anthropology, including foundation and anthropology, and anthropological features, naming the human nature, the soul, body, affect, cognitive, free will, conscience, memories, humans as social beings, and the end of human beings. The author also writes regarding theology and Canon Law, providing its theological justification in the process (Law in the Early Church and Jesus’ life, institution, and charisma, Canon Law and Communio, ontological and historical of Canon Law, and legalism and antinomianism). Still, under theology, the author writes about Canon’s Law reason and faith (Luther, Thomas, and Calvin, theological anthropology of Vatican II, and revelation and anthropology). The book also includes the Natural Law and Canon Law, specifically human nature as the foundation of law and the modern and classical conceptions of reason. Coughlin also ventures into Canonical equity, including its historical development, in the 20th-century, and the historical implications and the objectivity of the law. Additionally, this source incorporates the Canon Law development, marriage personalism, secular state and Canon Law, and the effects on hierarchical Churches by neutral rules.
Properly organized, Coughlin’s book is very useful as it provides information regarding the Canon Law in a broader view. Despite some of its information being similar to those in other sources here, the author has included the Canonical Equity in a more simple and direct manner. Being a theological study, this book is useful as it dedicates an entire chapter discussing the theological Canon Law justification.
Coughlin, John. Canon Law: A Comparative Study with Anglo-American Legal Theory. Oxford: Oxford University Project, 2011.
In this book, Coughlin starts by explaining legalism and antinomianism, Anglo-American lawful theory and comparative law, and the rule of law and Canon Law. He proceeds by providing an overview of Canon Law by giving examples of its historical and scriptural sources, rule of law, and modern canon law (20th-century codifications, other sorts and sources of Canon Law, Canonical equity, exception, dispensation, and privilege, and the unity of theology and law). The book then looks into the sexual abuse issue and Canon Law: legalism, antinomianism, and the failure of the rule of law. This part discusses how Canon Law has failed in acting on cases of sexual abuses by the clergy, Canon Law and statistical evidence, and Canonical procedure challenges. The author then discusses the consequences of the law failing to address the sexual abuse crisis, Church property, differences of property theories in liberal theory and Canon Law, State Law and Canon Law, and the Parish and Diocese. Additionally, the book discusses Canon Law indeterminacy, Canon 915, and finally concludes by providing observations on law, legalism, and antinomianism.
This source is important as it provides detailed information about Canon Law. It also answers the question of whether Canon Law counts as law if it has command and coercive power. This book also provides information regarding Canon Law constituting of a law system, and its fulfillment of the rule of law requirements. It will be beneficial in comprehensively discussing Canon Law.
Formicola, Jo. “Challenge and Complexity: Canon Law and Civil Law.” Palgrave Studies in Religion, Politics, and Policy (2014): 75-109. <https://page-one.springer.com/pdf/preview/10.1057/9781137381644_4>.
In this book series, Formicola seeks the reasons why the American Catholic and Vatican hierarchy has slowly responded to the clerical sexual violence in a secretly and haphazardly manner. The author also questions why the legal systems, as well as the hierarchical structure of the Church, protect priests who commit these beastly acts. According to the author, the leaders of the Church have denied, excused, obfuscated, and blamed other people for the tragedy. To answer these queries, the author looks into the Canon Law, which remains the internal legal system of the Church. He mentions how it has, over the past two millenniums, formed and legitimized the religious autonomy and power of the Church. The source then mentions how the Canon Law later aimed to gain control and authority over the majority of the religious freedom aspects in civil society. Formicola also examines how bishops and popes have utilized it, seeking to understand the mindset and reaction of the hierarchy to clerical sexual abuse.
This source is short but at the same time important as it talks of how the Church has used the Canon Law, gaining access, power, and control of not only the Church, but of the civil society as well. Therefore, it will be important to use, as it is direct and short.
Merryman, John and Rogelio Perez-Perdomo. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America. 3rd. California: Stanford University Press, 2007.
This source, by explaining the two legal traditions, the Common and Civil Law, provides additional information to the study. However, the focus of this source is the tradition of Civil Law. The authors then provide information regarding the Roman Civil Law, Commercial Law, and Canon Law, followed by the revolution and the origins of law. Merryman and Perez-Perdomo then discuss the codification of legsilation, the judges, the statutes’ interpretation, and equity and certainty. This source also incorporates the scholars involved in this topic, legal science, the legal procedures, as well as the overall part. Additionally, this source incorporates the legal experts, civil processes, criminal processes, the review of the constitution, and the perspectives of the same. Lastly, the authors look into the future of the tradition of Civil Law.
This book provides useful information regarding both the Civil Law and Canon Law. Discussion of these laws offers an efficient manner of summarizing the tradition of this legislation, as well as the Canon Law’s historical development. The book provides insightful information about how the Canon Law influenced Civil Law, and how they were both applied generally in Europe.
Summary
Numerous works of literature have attempted to explain the logic between Civil Law and Canon Law. Most of the literature discussing either of the two also mentions the other law in terms of influence, support for each other, or supplementing each other. The definition of Civil Law has been provided by many authors, such as Apple & Deyling, McSweeney, and Merryman and Perez-Perdomo. It is the law system that predominated the European states and was influenced historically by ancient Rome. In the contemporary world, Civil Law systems are incorporated in every continent and adopted by more than half of the world. Canon Law, on the other hand, is the ordinances and rules that govern the Christian Community, as explained by different authors, including Laschuk, Nemec & Vladar, and Coughlin. It has its origin on the Roman Law and was implemented to meet the requirements of the Middle Ages Church. It also had significant influences during the median ages.
These sources discuss how the Canon Law is like an ancestor of the modern Civil Law. However, Canon and Civil Laws are different but both have proved to be effective. They have distinct competence zones, such as the Canon Law dealing with its Church issues and the Civil Law handling the societal issues. However, the two can complement each other at times, such as in the sexual abuse cases that have been reported within the Catholic clergy.
Works Cited
Apple, James and Robert Deyling. A Primer on the Civil-Law System. Washington D.C: The Federal Judicial Center, 2012. <https://www.fjc.gov/sites/default/files/2012/CivilLaw.pdf>.
Burger, Michael. The Shaping of Western Civilization: From Antiquity to the Present. Toronto: Univerity of Toronto Press, 2013.
Coughlin, John. Canon Law: A Comparative Study with Anglo-American Legal Theory. Oxford: Oxford University Project, 2011.
—. Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law. Oxford: OUP USA, 2012.
Davies, E. FOUNDATIONS OF LAW. Grahamstown: Rhodes University, 2019. <https://www.ru.ac.za/media/rhodesuniversity/content/law/documents/FOUNDATIONS_OF_OUTLINE_2019.pdf>.
Formicola, Jo. “Challenge and Complexity: Canon Law and Civil Law.” Palgrave Studies in Religion, Politics, and Policy (2014): 75-109. <https://page-one.springer.com/pdf/preview/10.1057/9781137381644_4>.
Laschuk, Alexander. The Role of Canon Law in the Catholic Tradition and the Question of Church and State. 2019. 8 November 2019. <https://www.cardus.ca/research/law/reports/the-role-of-canon-law-in-the-catholic-tradition-and-the-question-of-church-and-state/>.
McSweeney, Thomas. “Magna Carta, Civil Law, and Canon Law.” Magraw, Daniel, Andrea Martinez and Roy Brownell II. MAGNA CARTA AND THE RULE OF LAW. Virginia: William and Mary Law School, 2014. <http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2898&context=facpubs>.
Merryman, John and Rogelio Perez-Perdomo. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America. 3rd. California: Stanford University Press, 2007.
Nemec, Matúš and Vojtech Vladár. THE ESSENTIALS OF CANON LAW. Trnave: Trnavská univerzita v Trnave, Právnická fakulta, 2013. <http://iuridica.truni.sk/sites/default/files/dokumenty/zahranicne-vztahy/en/publications/pdf/01Canon%20Law.pdf>.
