Roman Catholic Canon Law Research Articles

The Language Games of Canon Law: Strategic Ambiguity Between Law and Religion

Abstract The continental tradition of modern positive law, with its attempt to formulate clear legal rules, tends to be suspicious of ambiguity and struggles with the productive power of the untranslatable. Opaque kernels that inevitably remain in laws seem risky and call for disambiguation—through legislation, the courts, or administration. Yet despite this struggle against ambiguity, laws, as texts made of language, not only remain essentially ambiguous, but often require ambiguity when regulating for plural groups. In global legal orders, such as Roman Catholic canon law, we can observe that ambiguity is used strategically to allow for the inclusion of plural legal cultures. Adding to this, canon law fosters its opaqueness by meandering between secular and religious language games, thus playing with the semantic surplus of religion for the sake of cultivating ambiguity. This ambiguity management is itself ambiguous. It is inclusive, allowing plural communities to exist under the roof of Catholicism, but it is also open to the authorities’ arbitrary decisions undermining legal certainty as a core value of modern law.

On doing what is just, right and fair

‘Just’, ‘right’ and ‘fair’ are complex concepts without singular definitions. This article investigated these concepts from the perspective of Roman Catholic canon law. The historical and theological contexts of the Roman Catholic Church (the Church) are set within these concepts, which should be understood. Within this context, the notion of ‘justice’ in the Church is described in four different steps. The first step is a description of the difficult concept of truth and the role of divine law within it. Then, the norm of law is discussed, including the space left for notions such as equity and the salvation of souls. Furthermore, exceptions to the law will be examined, with special attention to both privilege and dispensation. Finally, the custom contra legem will be described as a last possibility for doing justice in the event of unjust laws. Notions like ‘just’, ‘right’ and ‘fair’ are of utmost importance. Yet at the same time, absolute certainty on the content of the three important notions quoted in the title cannot be achieved – historical context, personal life and unexpected circumstances. They all play a role in offering the right definition. There is no clear definition of what is ‘just’, ‘right’ or ‘fair’, neither from a ‘moral theological’ or ‘ethical’ point of view, nor from ‘the perspective of the Law’. That is perhaps the correct starting point. People should not be alarmed when good intentions regarding justice lead to different outcomes.

Moral Certitude: Merits and Demerits of the Standard of Proof Applied in Roman Catholic Jurisprudence

Abstract In Roman Catholic canon law, moral certitude describes the ecclesiastical judge’s full conviction that a defendant is guilty or that a statement of claim made by a civil plaintiff is rightful. Moral certitude is the requirement for a conviction or a civil sentence in favour of the party under the burden of proof. Secular legal orders apply other standards. Anglo-American legal cultures mostly refer to the beyond a reasonable doubt standard in criminal cases, the preponderance of evidence, or the clear and convincing evidence standard in civil matters. Continental European cultures predominantly refer to the standard of full conviction in criminal and civil matters alike. This article compares those standards of proof with moral certitude in order to better understand its merits and limits. Based on this comparison, it examines the arguments both in favour of and against abiding with moral certitude as a standard of proof in the Catholic Church.

Was Roman Catholic Canon Law Studied in Eighteenth-Century England?

The establishment of the Anglican Church by Henry VIII and its Protestantisation achieved by his children Edward VI and Elizabeth I did not cause the absolute rejection of Catholic customs and traditions in England. Unlike other Protestant communities, the Anglican Church maintained a developed legal order, which was a continuation of a heritage of medieval canon law. The final victory of Anglicanism over Catholic sentiments was achieved in the eighteenth century. The article asks whether that same mechanism worked in the sphere of the teaching of canon law in England in the eighteenth century. It is worth remembering that canon law could not be taught openly, and for this reason, it was often disguised in the form of history lectures and the reception of Roman law. The article contains the conclusions drawn from the analysis of popular eighteenth-century textbooks of Roman law and Anglican ecclesiastical law. References to Roman canon law were sought in them, and modes of expressing statements regarding the Catholic Church and its law were evaluated.

Marriage in the canons of the council in Trullo

This study presents the historical development of marriage as a legal object in Eastern Orthodox canon law. The argument of the article is that the need of the ecclesial polity to adapt to a new situation following the Islamic conquests of the seventh century led to the development an ecclesiastical common law independent of Byzantine-Roman civil law in order to survive under Muslim rule. The sources of the canon law of marriage were Scripture, patristic customary law, and Byzantine-Roman civil law. It is further argued that the differences between Roman Catholic canon law and Eastern Orthodox canon law with regards to marriage are the result of different political contexts and different theological concerns in the East and the West.

Ratum et Consummatum: Refiguring Non-Penetrative Sexual Activity Theologically, in Light of Intersex Conditions

The norms which render penetrative vaginal sex between heterosexuals cosmically different in significance from non-penetrative and non-heterosexual acts of sex are problematic and possibly unjustifiable in light of physical intersex conditions. Roman Catholic Canon Law states a marriage is not consummated until the spouses have performed "in a human fashion a conjugal act which is suitable in itself for the procreation of offspring." The paper shows that this is exclusive of those with atypical genital anatomy and represents an inadequate theological understanding of mutual relationship. Obsession with penetrative vaginal sex is echoed by surgeons who perform corrective surgery of children with atypical genitalia, and repeats cultural codes which over-value it. Adrian Thatcher's theology of betrothal is used to show that a more processive understanding of marriage and consummation is desirable, and that there are robust theological grounds for celebrating some types and occasions of sexual intimacy outside marriage.

Alienation of Temporal Goods in Roman Catholic Canon Law: A Potential for Conflict

Alienation of church property is governed by both canon law and civil law, which may give rise to conflict. This paper addresses issues surrounding the Roman Catholic canonical requirements for alienation including the need to consult experts. Failure to consult, itself may give rise to concerns over the validity of the diocesan bishop's permission to alienate and, in turn, the lawfulness of the sale. This is not merely academic. Churches in the United States find themselves in the position where ownership of temporal goods is of increasing interest to the civil courts in the pursuit of compensation for successful litigants in the current wave of abuse cases.

The Formation and Ordination of Clergy in Anglican and Roman Catholic Canon Law Edited by Norman Doe The Acts of the Sixth, Seventh and Eighth Colloquia of Anglican and Roman Catholic Canon Lawyers, Rome 2005, Johannesburg 2006, Rome 2007 Centre for Law and Religion, Cardiff, 2009, 161pp ISBN: 978-0-9558097-3-6 - Marriage in Anglican and Roman Catholic Canon Law Edited by

The Formation and Ordination of Clergy in Anglican and Roman Catholic Canon Law Edited by Norman Doe The Acts of the Sixth, Seventh and Eighth Colloquia of Anglican and Roman Catholic Canon Lawyers, Rome 2005, Johannesburg 2006, Rome 2007 Centre for Law and Religion, Cardiff, 2009, 161pp ISBN: 978-0-9558097-3-6 - Marriage in Anglican and Roman Catholic Canon Law Edited by Norman Doe The Acts of the Ninth Colloquium of Anglican and Roman Catholic Canon Lawyers, Malta 2008 Centre for Law and Religion, Cardiff, 2009, 119pp ISBN: 978-0-9558097-4-3 - Volume 12 Issue 1

Churches and Other Religious Organisations as Legal Persons Edited byLars Friedner Proceedings of the 17th Meeting of the European Consortium for Church and State Research, Höör, Sweden, 17–20 November 2005, Peters, Leuven, 2007, vi + 228 pp (paperback €45.00) ISBN: 978-90-429-1858-0 - Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law Edited byJames ConnSJ, Norman Doe and Joseph

Churches and Other Religious Organisations as Legal Persons Edited byLars Friedner Proceedings of the 17th Meeting of the European Consortium for Church and State Research, Höör, Sweden, 17–20 November 2005, Peters, Leuven, 2007, vi + 228 pp (paperback €45.00) ISBN: 978-90-429-1858-0 - Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law Edited byJames ConnSJ, Norman Doe and Joseph Fox OP The Centre for Law and Religion, Cardiff University, the Pontifical Gregorian University and the Pontifical University of St Thomas Aquinas, 2005, xii + 321 pp (paperback, no price given) no ISBN - Volume 11 Issue 3

Sacramental Sharing in Roman Catholic Canon Law: A Comparison of Approaches in Great Britain, Ireland and Canada

Faced with difficulties of communication between separated churches, the Roman Catholic Church has attempted to provide a framework for sacramental sharing between Christians genuinely prevented from receiving the sacraments in their respective churches and ecclesial communities. This paper first considers the Roman Catholic canonical requirements for sacramental sharing. It then addresses the approach taken in the ecclesiastical jurisdictions in Great Britain and Ireland, and compares it with that of Canada. Finally, suggestions for reform are considered.

James Conn SJ, Norman Doe and Joseph Fox op (eds), Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law (The Centre for Law and Religion, Cardiff University, Pontifical Gregoral University, Pontifical University of St Thomas Aquinas, 2005), 319 pp. Pbk. (Available from the Centre for Law and Religion, University of Cardiff)

James Conn SJ, Norman Doe and Joseph Fox op (eds), Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law (The Centre for Law and Religion, Cardiff University, Pontifical Gregoral University, Pontifical University of St Thomas Aquinas, 2005), 319 pp. Pbk. (Available from the Centre for Law and Religion, University of Cardiff)

Book Review : Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law

Book Review : Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law

Faithful Discipleship: Clergy Discipline in Anglican and Roman Catholic Canon Law edited by Mark Hill, The Centre for Law and Religion, Cardiff University, in collaboration with The Pontifical University of St Thomas Aquinas, Rome, Italy, 2001, xxi + 297 pp (£15 or £10 to members of the Ecclesiastical Law Society), obtainable from the Centre for Law and Religion, Cardiff University,

Faithful Discipleship: Clergy Discipline in Anglican and Roman Catholic Canon Law edited by Mark Hill, The Centre for Law and Religion, Cardiff University, in collaboration with The Pontifical University of St Thomas Aquinas, Rome, Italy, 2001, xxi + 297 pp (£15 or £10 to members of the Ecclesiastical Law Society), obtainable from the Centre for Law and Religion, Cardiff University, Law Building, Museum Avenue, PO Box 427, Cardiff CF10 3XJ. - Volume 6 Issue 30

Twentieth-Century Revision of Canon Law in the Church of England

This study describes and evaluates the Church of England's revision of its canon law in the twentieth century, concentrating on the period from 1939 to 1969. By way of introduction it should be said that this assessment is but part of a larger study which proceeds on two planes of comparison. In the larger study, revision by the Church of England is laid horizontally alongside another Anglican revision carried out as a result of disestablishment of the Church in Wales in 1920, and also the two revisions of Roman Catholic canon law leading to the promulgation of the Codex luris Canonici in 1917 and 1983. Vertically, the history of the revision of English canon law over the previous four hundred years gives some idea of what needed revision, and the difficulties in carrying it out under the constraints of being an established church. In this article, however, only the process of revision by the Church of England in the twentieth century is discussed.

Faith, Doctrine and Roman Catholic Canon Law

‘It is not at all easy (humanly speaking) to wind up an Englishman to a dogmatic level’.This quotation is, of course, from Newman's Apologia, where many memorable things are said. Yet, even in England, it seems inescapable to treat of faith and doctrine if we are to consider Roman Catholic canon law. As Christian believers, consequently holding certain doctrines about Christ and his Church, we have a theology of canon law and a theology in canon law. We explore the theology of canon law whenever we consider why there is canon law at all in a Church founded on the unique saving grace of Jesus Christ, and we explore the theology in canon law whenever we consider how faith and doctrine show themselves in the making and application of canon law.