Professor Mons. Antonio Miralles

Pontifical University of the Holy Cross

Video-conference May 27^th 2005

Setting the theological foundations for Canon Law is like answering the question: Why does law exist within the Church? More than once one would have come across those proposing less Law, or at least a significant reduction of it, considering it an obstacle to the Church’s development as communion and as the primacy of charity, and furthermore because it mortifies the freedom of God’s children. It is instead precisely ecclesial communion, promoting charity and the protection of freedom that require a Law as we shall see in the rest of this paper.

In the Apostolic Constitution with which he promulgated the new Code of Canon Law, John Paul II explained that the Church, "Since, indeed, it is organized as a social and visible structure, it must also have norms". And on this subject, the following teaching of the Council is of the greatest importance: "Christ, the one Mediator, established and continually sustains here on earth His holy Church, the community of faith, hope and charity, as an entity with visible delineation […].But, the society structured with hierarchical organs and the Mystical Body of Christ, are not to be considered as two realities, nor are the visible assembly and the spiritual community, nor the earthly Church and the Church enriched with heavenly things; rather they form one complex reality which coalesces from a divine and a human element" (LG 8/1). The Church, therefore, is not only a visible and structured organisation of believers, nor is it a simply spiritual community: it is both these things. To exclude Law from the Church would mean considering it as exclusively consisting in invisible spiritual elements: the Church would no longer be a universal sacrament of redemption, "a sign and instrument both of a very closely knit union with God and of the unity of the whole human race" (LG 1), hence the sacrament of communion.

Then, to prove the Church’s need for norms, the same Pontiff added further reasons, which provide us with a good overview of Canon Law’s theological foundations. Let us first analyse this one: "while assigning the primacy to faith, grace and the charisms, it at the same time renders easier their organic development in the life both of the ecclesial society and of the individual persons who belong to it".The faithful are to be understood as a whole, including members of the hierarchy, and not only individually, but gathered together in groups of people and in the Church’s organised communities (dioceses, parishes, etc.), and associations (Religious Orders, Confraternities, etc.) or other kinds (schools, ecclesiastic universities, etc.).

Charity must rule all relations between the faithful, according to the Lord’s new commandment: "I give you a new commandment: love one another. As I have loved you, so you also should love one another" (John 13, 34). And as Saint Paul explains: "Love does no evil to the neighbor; hence, love is the fulfillment of the law." (Rom 13, 10). Evangelical love is charity, hence love that conforms to that of Jesus: a love asserting the value of the person loved and sincerely in search of that person’s good. Love such as this not only does not contrast justice, nor does it do without it; on the contrary it searches for justice. Justice in fact, according to the definition provided by the Catechism of the Catholic Church, "is the moral virtue that consists in the constant and firm will to give their due to God and neighbor. […]Justice toward men disposes one to respect the rights of each and to establish in human relationships the harmony that promotes equity with regard to persons and to the common good." (no. 1807). Charity does not make do with giving to each what is owed to him, but adds affection, goodwill, understanding, forgiveness, and interest for the good of the other, generosity and service. If justice is not respected however, there is no charity, because the person is no longer respected. Hence Saint Paul’s warning: "Owe nothing to anyone, except to love one another; for the one who loves another has fulfilled the law" (Rom 13, 8). Justice must be totally fulfilled, while charity has no restrictions: one can never love enough neither affectively nor effectively.

The Code of Canon Law, guaranteeing and correctly defining the rights of individuals, as John Paul II said, serves charity because it allows justice to be experienced, and not only by making known what is right, but also because it guarantees its social current liabilities, if necessary, also through canon sanctions. An example is now useful. The Code of Canon Law states that: "All to whom the care of souls has been entrusted in virtue of some function are obliged to make provision so that the confessions of the faithful entrusted to them are heard when they reasonably seek to be heard and that they have the opportunity to approach individual confession on days and at times established for their convenience" (can. 986). One therefore takes care of the faithful’s spiritual needs, satisfying their right to receive the sacraments from the holy ministers, in this specific case the sacrament of penance. If a parish priest does not meet this obligation, it is not charitable to allow him to continue to contravene justice regards to the faithful; this would not be in the interest of his spiritual good or that of the faithful.

Let is now consider another reason provided by John Paul II concerning the Church’s need for norms: "in order that the exercise of the functions divinely entrusted to her, especially that of sacred power and of the administration of the sacraments, may be adequately organized". This does not simply ensure organisational efficiency, because what it involves is ecclesial communion. This in fact is both invisible and visible; invisible, because in Christ, through the work of the Holy Spirit, it binds us to the Father and among ourselves; visible because it is the communion of the doctrine of the Apostles, in the sacraments and in the hierarchic order (see Ecclesia de Eucharistia, 35), which implies the communion of the holy ministers between one another and of all the faithful with their pastors. The invisible communion is expressed, formed and perfected through visible communion.

According to the Pontiff, the two functions, the exercising of which is adequately organised by Canon Law, are the same that maintain and consolidate visible communion among the faithful, because safeguarding and teaching faithfully the doctrine of the Apostles are part of exercising this holy power. This visible communion implies a varied ensemble of interpersonal relations of justice. Hence living justice, inspired by charity, is a way of living communion.

All this allows us to understand how important it is to understand Canon Law as what is right, and not as a collection of rules addressed at organisational efficiency or used as an instrument of power. Using the explanation provided by a famous scholar of the fundamental theory of Canon Law, one can state that "what is right can belong to a subject only if this subject is a person (and because it is ascribable to a person, as happens with social associations), and is owed to this person only because there are one or more persons obliged to act according to justice" (see C. J. Errázuriz). Having placed the person at the centre of ecclesial law, it appears in harmony with communion, which — precisely — exalts the person in his dignity, freedom and social relational nature.

Even though the visible communion elements that are the object of ecclesial juridical relations, above all the Word of God and the sacraments, are basically the work of Christ, and hence not answerable, they can indeed be the object of Law since they involve action by individual persons within the Church. As far as they are concerned it is possible to determine legally actions to be performed with a social obligation, and therefore becoming answerable. In this manner the norms serve the ecclesial community, which without them would easily be exposed to serious deterioration.

Another reason, added John Paul II, for the need for norms within the Church, is: "that common initiatives, undertaken for a Christian life ever more perfect may be sustained, strengthened and fostered by canonical norms.". In this one must emphasise the objectives of these shared initiatives, also definable as pastoral. They are addressed at an increasingly perfect Christian life, which can only be the one the Council speaks of: "all the faithful of Christ of whatever rank or status, are called to the fullness of the Christian life and to the perfection of charity; by this holiness as such a more human manner of living is promoted in this earthly society." (Lumen gentium, 40/2). The achievement of this objective can only be encouraged by feelings of inner freedom, according to Jesus’ teachings: "the truth will set you free" (John 8, 32), echoed by St. Paul: "and where the Spirit of the Lord is, there is freedom" (2 Cor 3, 17). This requires pastoral initiatives to be promoted respecting the juridical right to freedom, a reflection in the field of Canon Law of the freedom inherent to the fundamental fabric of redemption. Such initiatives, in their official elements, should not even follow a monolithic model involving only obedience and discipline.

Hence the protection of freedom and the promotion of common initiatives addressed at an increasingly perfect Christian life must be combined. This involves a real spirit of communion, and requires balance that it would by utopian to entrust uniquely to the goodwill of those involved, without explicit norms. This is not simply a question of regulating according to justice relations between individual believers and with the Church’s hierarchy: the protection of freedom and the promotion and support of pastoral care must also be addressed in the institutional sector. This concerns the Church’s central bodies as well was the particular Churches, parishes etc.

I closing I would like to say that thanks to all the presented here, one can understand how true and fair the last norm of the Code of Canon Law is: "the salvation of souls, which must always be the supreme law in the Church." (Can. 1752).