A Lecture Addressed to the
Theological Students’ Association
by Father Jay Scott Newman, J.C.L.
Assistant Professor of Canon Law
18 April 2001
In his De Praescriptione Haereticorum, Tertullian famously asked with derision, “What has Athens to do with Jerusalem?”, meaning “What has philosophy to do with theology?” I begin with this reminder because, although I am here to address the Theological Students’ Association, I am not a theologian; I a canon lawyer. And some among you may well ask with derision, “What has canon law to do with theology?” It’s a fair question, so before I explore the topic at hand today, I need briefly to digress and establish something of a lingua franca for our discussion.
Because she is a human society, the Church has had law, and therefore lawyers, since her foundation, but canon law as a distinct science and course of study did not emerge until the twelfth century. Canonists reckon the Italian monk Gratian as the Pater scientiae canonicae because his work provided a systematic and logical ordering of 1000 years of lawmaking. The Decretum Gratiani, completed around the year 1140, remained an indispensable touchstone for all canonists in the Western Church until the promulgation of the first Code of Canon Law in 1917. Now, you might suppose that after nearly nine centuries of doing this thing called canon law, there would be common agreement among canonists about just what their discipline is. You might suppose so, but you’d be wrong.
Among canonists today, there are some fundamental disagreements about the nature and method of their discipline, with two of the major proposals being — for lack of more precise terms — legal positivism and juridic theology. I am not here today to describe this disagreement, let alone to resolve the dispute. But to make intelligible much of what will follow in my remarks, I must explain that I hold canon law to be a truly theological discipline and therefore to have a theological method and object. Within the one science of sacred theology we commonly acknowledge many divisions: dogmatic theology, moral theology, biblical theology, and so forth. To these, I submit, must be added juridic theology-that is, canon law understood as a theological discipline with a specifically juridic character, vocabulary, and purpose.
One of the reasons why there is disagreement among canonists about the nature of their discipline is that there is often a tension between theological language and juridic language, or to put it otherwise, making laws out of theological truths is not simple. And yet, there must be an organic connection between the two if the law of the Code is to be truly the law of the Church. Pope John Paul II addressed this point in the 1983 Apostolic Constitution Sacrae Disciplinae Leges, by which he promulgated the present Code of Canon Law. The pope writes:
“As the Church’s principal legislative document founded on the juridical-legislative heritage of revelation and tradition, the Code is to be regarded as an indispensable instrument to ensure order both in individual and in social life … the Code … fully corresponds to the nature of the Church, especially as it is proposed by the teaching of the Second Vatican Council…. Indeed, in a certain sense this new Code could be understood as a great effort to translate this same conciliar doctrine and ecclesiology into canonical language.”