Canon Law as a Science

As we shall see in treating of the gradual development of the material of canon law (see below, IV), though a legislative power has always existed in the Church , and though it has always been exercised, a long period had necessarily to elapse before the laws were reduced to a harmonious systematic body, serving as a basis for methodical study and giving rise to general theories. In the first place, the legislative authority makes laws only when circumstances require them and in accordance with a definite plan. For centuries, nothing more was done than to collect successively the canons of councils, ancient and recent, the letters of popes , and episcopal statutes ; guidance was sought for in these, when analogous cases occurred, but no one thought of extracting general principles from them or of systematizing all the laws then in force. In the eleventh century certain collections group under the same headings the canons that treat of the same matters; however, it is only in the middle of the twelfth century that we meet in the "Decretum" of Gratian the first really scientific treatise on canon law. The School of Bologna had just revived the study of Roman law ; Gratian sought to inaugurate a similar study of canon law. But, while compilations of texts and official collections were available for Roman law , or "Corpus juris civilis", Gratian had no such assistance. He therefore adopted the plan of inserting the texts in the body of his general treatise; from the disordered mass of canons collected from the earliest days, he selected not only the law actually in force (eliminating the regulations which had fallen into desuetude, or which were revoked , or not of general application) but also the principles; he elaborated a system of law which, however incomplete, was nevertheless methodical. The science of canon law, i.e. the methodical and coordinated knowledge of ecclesiastical law, was at length established.

Gratian's "Decretum" was a wonderful work; welcomed, taught and glossed by the decretists at Bologna and later in the other schools and universities , it was for a long time the textbook of canon law. However his plan was defective and confusing, and, after the day of the glosses and the strictly literal commentaries, it was abandoned in favour of the method adopted by Bernard of Pavia in his "Breviarium" and by St. Raymund of Pennafort in the official collection of the "Decretals" of Gregory IX , promulgated in 1234 (see CORPUS JURIS CANONICI). These collections, which did not include the texts used by Gratian, grouped the materials into five books, each divided into "titles", and under each title the decretals or fragments of decretals were grouped in chronological order. The five books, the subject matter of which is recalled by the well-known verse: "judex, judicium, clerus, connubia, crimen" (i.e. judge, judgment, clergy , marriages , crime), did not display a very logical plan; not to speak of certain titles that were more or less out of place. They treated successively of the depositaries of authority, procedure, the clergy and the things pertaining to them, marriage, crimes and penalties. In spite of its defects, the system had at least the merit of being official; not only was it adopted in the latter collections, but it served as the basis for almost all canonical works up to the sixteenth century, and even to our day, especially in the universities , each of which had a faculty of canon law.

However, the method of studying and teaching gradually developed: if the early decretalists made use of the elementary plan of the gloss and literal commentary, their successors in composing their treatises were more independent of the text; they commented on the titles, not on the chapters or the words; often they followed the titles or chapters only nominally and artificially. In the sixteenth century they tried to apply, not to the official collections, but in their lectures on canon law the method and division of the "Institutes" of Justinian : persons , things, actions or procedure, crimes, and penalties (Institutes, I, ii, 12). This plan, popularized by the "Institutiones juris canonici" of Lancellotti (1563), has been followed since by most of the canonist authors of "Institutiones" or manuals, though there has been considerable divergence in the subdivisions; most of the more extensive works, however, preserved the order of the "Decretals". This was also followed in the 1917 code. In later times many textbooks, especially in Germany , began to adopt original plans. In the sixteenth century too, the study of canon law was developed and improved like that of other sciences , by the critical spirit of the age: doubtful texts were rejected and the raison d'être and tendency or intention of later laws traced back to the customs of former days. Canon law was more studied and better understood; writings multiplied, some of an historical nature , others practical, according to the inclination of the authors. In the universities and seminaries , it became a special study, though as might be expected, not always held in equal esteem. It may be noted too that the study of civil law is now frequently separated from that of canon law, a result of the changes that have come over society . On the other hand, in too many seminaries the teaching of ecclesiastical law is not sufficiently distinguished from that of moral theology . The publication of the new general code of canon law will certainly bring about a more normal state of affairs.

The first object of the science of canon law is to fix the laws that are in force. This is not difficult when one has exact and recent texts, drawn up as abstract laws e.g. most of the texts since the Council of Trent , and as will be the case for all canon law when the new code is published. But it was not so in the Middle Ages ; it was the canonists who, to a large extent, formulated the law by extracting it from the accumulated mass of texts or by generalizing from the individual decisions in the early collections of decretals . When the law in force is known it must be explained, and this second object of the science of canon law is still unchanged. It consists in showing the true sense, the reason , the extension and application of each law and each institution. This necessitates a careful and exact application of the triple method of exposition, historical, philosophical , and practical: the first explains the law in accordance with its source and the evolution of customs; the second explains its principles; the last shows how it is to be applied at present. This practical application is the object of jurisprudence , which collects, coordinates and utilizes, for more or less analogous cases, the decisions of the competent tribunal. From this we may learn the position of canon law in the hierarchy of sciences . It is a judicial science , differing from the science of Roman law and of civil law inasmuch as it treats of the laws of an other society ; but as this society is of the spiritual order and in a certain sense supernatural , canon law belongs also to the sacred sciences . In this category it comes after theology , which studies and explains in accordance with revelation , the truths to be believed ; it is supported by theology , but in its turn it formulates the practical rules toward which theology tends, and so it has been called "theologia practica", "theologia rectrix". In as far as it is practical the science of canon law is closely related to moral theology ; however, it differs from the latter which is not directly concerned with the acts prescribed or forbidden by the external law , but only with the rectitude of human acts in the light of the last end of man , whereas, canon law treats of the external laws relating to the good order of society rather than the workings of the individual conscience . Juridical, historical, and above all theological sciences are most useful for the comprehensive study of canon law.

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