Law has frequently been called into question in the Church. However, it is not possible to get away from it, as the example of the Reformers shows. Canon law is of importance for the historian. The article points to its origin and development beginning with its emergence before the year 60, its development in time of persecution and finally in the broad light of day. Influenced by medieval Roman Law, it took on a "juridic" character for which it receives criticism today.
Historic research is necessary for religious sciences and for Canon law in particular. Like Judaism, Christianity is really a religion of history, of memory ("Do this in memory of me"), of fidelity to the Word of God. Unlike democratic systems, the legislator in Canon law is only the interpreter or the vicar of another, of God himself. Several areas remain to be explored by historic research following fresh insights : the sacraments, clergy and laity in communities, etc.
There are five oriental Catholic Rites, subdivided into twenty-one Churches which embrace about fifteen million adherents. The first codification of oriental law was begun in 1927. This was only partially promulgated. The code of 1990 was, therefore, the first to be complete. Several distinctive characteristics of the oriental code are pointed out : terminology, penal law, matrimonial law, the principle of synodality.
The first in-depth reflection on canon law is attributable to Yves de Chartres in his "Prologue" (circa 1095). He points out that "truth" and "mercy" are not mutually exclusive concepts ; it is for bishops to apply the law in accordance with circumstances, strictly or flexibly, for the good of the Church and the salvation of one's neighbour. The "Prologue" sets out a complete theory concerning dispensation (exemption) which is seen as a realisation of God's mercy. Very few laws are immutable: in most cases, it is necessary to adapt them to meet the circumstances.
Apostolic conservators were a category of delegated judges whose duty it was to defend the rights and privileges of certain persons. The eleven popes who occupied the papal throne between 1261 and 1294 did not issue legislation concerning the apostolic conservators. However the institution existed in full vigour during that second half of the 13th century. The popes continued to appoint conservators in order to ensure the protection of persons, physical persons and especially moral persons. They were forbidden to have recourse to judicial procedure but they were permitted to follow a simplified procedure which later came to be known as summary procedure. The popes insisted that they should not follow judicial procedure and that they should confine themselves strictly to the assignment entrusted to them, under pain of nullity of their intervention ; furthermore they fixed a deadline for the carrying out of their mandate, usually three or five years. These who were judged guilty and punished with a canonical sanction as well as their witnesses had no right of appeal.
It is customary to classify four schools of Canon law : the Italian school (Juridic) the Munich school (theological), the Navarre school (Juridic-theological), the "Concilium" School (detheologisation). This classification is outmoded : since Vatican II it is generally admitted that Canon law cannot stand independently of theology. It is more appropriate to consider the matter in the light of the stance taken regarding maters which are the subject of present day debate. Some schools would not have any fixed stance but would vary their position in accordance with the problem under examination. For example, in the content of the "munus regendi" and the laity, it is possible to distinguish those who would exclude the laity from all power in the Church (Bertrans, Mörsdorf, Aymans, Corecco) from those who would favour the exercise of power by the laity, (Beyer, Erdö, Hervada) : this distinction does not fit into any of the classical schools. Another example : one might classify authors according to their view of the efficacy of canon law, beginning with those (theologians and historians) who deny any efficacy at the present time and proceeding to those for whom a law that is not efficacious holds no interest.
Canon law faculties are regulated by different documents one of which is "Sapientia Christiana" (1979). The canonist's role is twofold, teaching and research. The outcome of research is "doctrine" which exercises an influence on the law. Research, for example historical research, must not be exegesis of the code. An important role for the canonist is to pass judgement on the appropriateness of a law. That presupposes a readiness on the part of the legislator to put at the disposal of the canonist the means wereby he can study the elaboration of the law by opening up archives : it presupposes also that tribunals (in particular die Apostolic Signatura) should publish their jurisprudence. A collation too et university level of theses on canon law subjects is necessary. Freedom of research should be characterised by a code of self-discipline among canonists in matters in which the magisterium requires obedience (obsequiurn), particularly in the case of publications and of the teaching. Finally the canonist plays a role as expert or consultant in the government of local Churches and the Universal Church.
There are various methods for determining the hierarchy of norms in Canon Law. One may base a classification on the source of the law (the superior legislator prevails over the inferior legislator). One may also base it on derogation (the paticular law derogates from the general law and in this sense it takes a precedence over it). Since the idea of having a Fundamental Law for the Church was abandoned, no organism exits to classify norms ; the Church has not a Constitutional Court. Since the promulgation of "Pastor Bonus" in 1988, "the Pontifical Council for the Interpretation of Legislative Texts" bas been granted competence to some extent in this matter. However, many questions remain to be answered, in particular the question of "ius remonstrandi" (the right of bishops to lodge an objection against a general law).
A debate on the terminology currently in use in France to describe legislation concerning religious worship in the broad sense of that word is not an idle practice or a merely intellectual exercise. Indeed the terminology employed in this context embraces differing ideas concerning Church/State relations. The expression "droit ecclésiastique" (ecclesiastical law) is bound up with the Gallican tradition while the expression " droit civil ecclésiastique " (civil ecclesiastical law) is representative of a trend which emphasises the identity of Catholic institutions. " Droit des Religions " (the law of religious bodies) augurs for a more modern type of administration in religious matters, an administration which is both pluralist and open.
The German Staatskirchenrecht is the product of a compromise arrived at between the Churches and the State after the "Kulturkampf". The fundamental principles were first proclaimed and defined in canon law literature, especially by Protestant authors such as Hinscius and Kahl. As a member of the Weimar National Assembly, Kahl was responsible for the definitions of that Constitution which now form an integral part of the Bonn Constitution. The cooperation between the State and the major Churches represents a tradition spanning a century of German history. This cooperation was interrupted only by the National Socialist and Communist dictatorships. The German Staatskirchrnrecht has made great contributions towards the integration of the German Nation, one might say towards the idea of a nation founded on a common culture. In German Public Law it represents an area of stability and continuity which opened the way to freedom of religious belief and to the guarantee of independent organisation for the Churches. It is difficult for a historian to forecast what the chances of survival are for this system in a Europe of the future with different traditions in the realm of Church/State relations. The jurist can draw inspiration for present day juridic systems from his researches into the history of law.
Research into the relationship between pastoral theology and canon law is a
kind of toing-and froing. Using an automated bibliography one finds a body of
articles dealing with the canonist's work and in that may one is able to list
the contributions made by pastoral theology to canon law. It is possible now to
draw some lessons from canon law writings which deal specifically with this
subject. From the point of view of a more actively complementary role played by
pastoral theology and canon law, the work of the canonist is seen as assuming a
threefold guise, namely that of expertise in the realm of Church law, that of
arbitrating in the case of conflict with pastoral theology and that of
interpretation of canonical doctrine. He, therefore, joins the strands of
science, of skill and of teaching.
Worship should be in spirit and in truth no matter where it takes place. References to the reformers (Luther, Calvin, Zwingli, Bucer) show clearly that in Protestant theology, there are sensibilities and positively nuanced points of view concerning buildings and places of worship. However, all are at one in emphasising the fact that the Church (the assembly) is more important than the church (the building).
According to Luther, the pastor's primary duty is the proclamation of the Gospel and the administration of the sacraments. Beside those ministries which are occupied in the proclamation of the Gospel, there are supports or back-up ministries such as those involved in the diaconate and in the government of the Church. The pastoral ministry should encourage, form and co-ordinate the other ministries. For the past few decades the ordination of women as pastors raises a considerable problem for ecumenism.
Rabbis (masters) are judges, learned persons, leaders in the spiritual and social spheres. Until the l9th century, they did not preside over religious services and they do not conduct marriage ceremonies or burial services. Today, they lead at prayer, they teach and act as chaplains in Lycées, etc. In France, the leadership of the communities is entrusted to a president. The article gives a detailed account of the recruitment and of the duties of Rabbis and of the chief Rabbi of France.
The article traces French Rabbinic history from the time of Napoleon to the present day, dealing with the Law of Separation of l905 and the coming of the North African Jews which doubled the Jewish population of France in 1962.
Hinduism has not a hierarchically structured clergy. In orthodox Hindu families, religious worship is conducted by the bead of the family, but there are several categories of Hindu who perform the functions of a priest full-time or on occasions. There are eight different classes of persons who officiate: cantors, brahmans, etc. The entire religious and social life of Hindus, everything concerning ritual, everything connected with the choice, duties and rights of those who officiate must obey a corpus of rules which falls within the province of "dharma''.
Ibn Abi Zayd al-Qayrawani (922-996) is the author of the Risala, which summarises the doctrine of malekism, the prevailing legal tradition of French Islam. The duty of the Imam is to attend to preaching and to govern. There is a distinction between the original office of imam exercised by the Prophet, and the office of imam as it is exercised by the caliph and the office of imam as it is exercised by those who preside at religious worship and prayer in local communities. The word "Imam" signifies "the one who stands in front" especially for prayer. However, there is not a question of priesthood; the imam is not the holder of a sacred office.
Following the lead given by Christ and the Apostles, the Christian communities regarded themselves from the beginning as the New Temple. built from living stones. Depending on the political and cultural situation in which they found themselves, they held their assemblies sometimes in private houses, sometimes in special buildings, the architecture and decor of which have developed throughout the Christian era. Christian worship is not, therefore, limited to specific places of worship but, when they are provided, those buildings acquire a very special significance.
Basing himself on the code of 1983, the author sets out the catholic understanding of order and ministry; the requirements for admission to the ordained ministry (recruitment, formation, ordination procedures, irregularities, impediments), the regulations relating especially to the ministry of bishops, priests and deacons; and finally the regulations concerning the life of ministers in their different situations in life. The priest occupies a unique situation in contemporary society but his situation is not as homogenous as one might be led to believe by merely reading the code.
Two main concepts can be picked out: the concept of a place of worship and the concept of a sacred place. The present law distinguishes churches, oratories, chapels and shrines. A place of worship becomes a sacred place by dedication or by a constitutive blessing. Its use is then reserved for worship, for exercises of piety and for religion, however, the ordinary may permit use for other purposes which are not inconsistent with the hallowed nature of the place. The sacred nature of places of worship distinguished Catholicism from many other religions but it tends to become blurred in our time. Hence, the notions of immunity and of the right to asylum have disappeared from the code of l983.
The presbytery as a dwelling place for a priest serving in a parish has undergone significant changes from the point of view of what was envisaged originally in the local law of Alsace an Moselle. Only half of the presbyteries are still occupied by a priest. A solution would be to close down those which no longer serve their purpose. A new solution has been proposed in Moselle: an agreement signed by both the bishop and the mayor of the commune, a model of which is to be found in the article.
In the local legal system of Alsace and Moselle an obligation is imposed on communes to make up the deficit which may occur in the administration of parishes. In fact, a city like Strasbourg adopts a more active policy; it has built churches, it has made grants of building sites and is has gone guarantor for loans. At present it gives large grants to prevent debts being incurred and it takes charge of construction work in order to allow for the recovery of taxes (TVA). In sum, the contribution made by the city significantly exceeds its strict legal obligations.