Law, Person, and Community

Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law takes up the fundamental question "What is law?" through a comparative study of canon law and secular legal theory. Canon law is analogous to the concept of law described by secular theorists such as Austin, Kelsen, Holmes, and H. L. A. Hart. Consistent with the secular concept, canon law aims to set a societal order that harmonizes the interests of individuals and communities, secures peace, guarantees freedom, and establishes justice. At the same time, canon law reflects a claim about the spiritual end of the human person and religious nature of community. The comparison of one of the world's ancient systems of religious law with contemporary conceptions of law rooted in secular theory raises questions about the law's power to bind individuals and communities. For example, to what extent, does each of the approaches to law reflect the theory of Austin which understands law as a command given by the sovereign and backed by the coercive power of the state? Or, as H. L. A. Hart suggested, does law require an additional internal meaning that carries the power to bind? If internal meaning is a necessary constituent to law, how might religious and secular conceptions of it differ? In addition to these questions, Law, Person, and Community asks the fundamental question "What is law?" through a comparative study of canon law and secular legal theory. This book also includes comparative consideration of the failure of canon law to address the clergy sexual abuse crisis, the canon law of marriage, administrative law, the rule of law, and equity. Professor John J. Coughlin employs comparative methodology in an attempt to reveal and contrast the concepts of the human person reflected in both canon law and secular legal theory.
"John J. Coughlin's book, Law, Person, and Community: Theological, Philosophical, and Comparative Perspectives on Canon Law, is a breath of fresh air in the positivistic polluted atmosphere of the Western legal systems. His approach, instead of following the rule: 'whatever the Queen in Parliament enacts is law', which often has been concretized in legislation contrary to the 'Creator's operating manual', opens a path to a better understanding of human ecology and recognition that human nature needs to be better understood and respected in legislation."
--Ernest Caparros, Visiting Professor,
Pontifical University of the Holy Cross (Rome, Italy)

"A notably significant contribution to a better understanding both of human law in general and of the special character of a religious law that, by its insight into the nature and destiny of human persons and into the community established to bring these persons to eternal life, differs profoundly from the laws held out by religions earlier and later than Catholicism."
--John Finnis, Professor of Law & Legal Philosophy Emeritus
University of Oxford

"John Coughlin's book should be required reading not only in civil [secular] and canon law schools but also in theological institutions. His understanding and elucidation of canon law as both an ordinance of reason and an ordinance of faith has important implications not only for specifically theological disciplines - e.g., ecclesiology, Christology, systematic theology, and Christian anthropology - but also for understanding both canon and civil law and each discipline's origin and application. Law, Person, & Community provides the necessary foundation to approach a variety of issues much to the fore in contemporary legal debate: the role of law in civil society and in the Catholic Church; the intentionality of both civil and canon law; and the interaction between civil and canon law. These issues in turn permit a logical and intelligentTABLE OF CONTENTS; PREFACE AND ACKNOWLEDGMENTS; ABBREVIATIONS; INTRODUCTION; I. KNOWLEDGE; II. LAW; III. PERSON; IV. COMMUNITY; V. AN OVERVIEW OF THIS STUDY; CHAPTER 1 CANON LAW AND ANTHROPOLOGY; I. ANTHROPOLOGY AND THE FOUNDATION OF LAW; II. ANTHROPOLOGICAL CHARACTERISTICS; A. HUMAN NATURE; B. THE BODY; C. THE SOUL; D. REASON; E. AFFECT; F. CONSCIENCE; G. FREE WILL; H. MEMORY; I. THE PERSON AS SOCIAL BEING; J. THE END OF THE HUMAN PERSON; III. CONCLUSION; CHAPTER 2 CANON LAW AND THEOLOGY; I. CANON LAW: ORDINANCE OF FAITH AND REASON; A. BIBLICAL ANTHROPOLOGY; B. HISTORICAL AND ONTOLOGICAL IN CANON LAW; C. ANTHROPOLOGY AND REVELATION; D. EPISTEMOLOGY AND CANON LAW; II. THE THEOLOGICAL JUSTIFICATION OF CANON LAW; A. THOMAS, LUTHER, AND CALVIN; B. CHARISM AND INSTITUTION; C. COMMUNIO AND CANON LAW; III. CONCLUSION; CHAPTER 3 CANON LAW AND NATURAL LAW; I. HUMAN NATURE AS A FOUNDATION FOR LAW; A. THE NEW NATURAL LAW THEORY; B. THE FUNCTION OF NATURAL LAW IN CANON LAW; C. THE RELATION BETWEEN NATURAL LAW AND THEOLOGY IN CANON LAW; II. CLASSICAL AND MODERN CONCEPTIONS OF LAW AND REASON; A. THE CLASSICAL UNDERSTANDINGS OF LAW AND REASON; B. LAW AND COMPETING MODERN CONCEPTIONS OF REASON; III. CONCLUSION; CHAPTER 4 CANONICAL EQUITY; I. HISTORICAL DEVELOPMENT OF CANONICAL EQUITY; A. THE MEDIEVAL CANONISTS; B. ST. THOMAS AND SUAREZ; C. THE STANDARD OF CANONICAL EQUITY; II. CANONICAL EQUITY IN THE TWENTIETH CENTURY CODES; A. EXPRESSED EQUITY; B. THE EQUITABLE CHARACTER OF THE STATUTE; C. UNWRITTEN EQUITY; III. HISTORICAL CONSCIOUSNESS AND THE OBJECTIVITY OF CANON LAW; IV. CONCLUSION; CHAPTER 5 DEVELOPMENT IN CANON LAW; I. THE DEVELOPMENT OF CANON LAW AND THE DEVELOPMENT OF DOCTRINE; A. NEWMAN'S ANTHROPOLOGICAL ANALOGY; B. PAPAL PRIMACY; 1. SACRED SCRIPTURE AND TRADITION; 2. HEAD AND BODY; 3. THE CIC-1983; II. FUNDAMENTAL RIGHTS IN THE CIC-1983; A. THE MEANING OF IUS; B. THE DOCTRINE OF HUMAN DIGNITY AND HUMAN RIGHTS LAW; C. THE NATURAL FOUNDATION OF HUMAN RIGHTS; D. THE THEOLOGICAL FOUNDATION OF HUMAN RIGHTS; III. A COMPARISON OF DEVELOPMENT IN CANON LAW WITH POSITIVISM'S SECONDARY RULES; IV. CONCLUSION; CHAPTER 6 PERSONALISM IN MARRIAGE; I. THE GOODS OF MARRIAGE; II. THE CLASSICAL UNDERSTANDING OF MARRIAGE AND SECULARIZATION; A. THE MEDIEVAL THEORY OF MARRIAGE; B. THE DEMISE OF THE CLASSICAL UNDERSTANDING; III. THE DEVELOPMENT OF THE PERSONALIST PERSPECTIVE IN CANON LAW; A. PERSONALISM AND VATICAN II; B. JURISPRUDENCE OF THE ROMAN ROTA; IV. CONCLUSION; CHAPTER 7 CANON LAW AND THE SECULAR STATE; I. TRADITIONAL AND MODERN VIEWS OF CHURCH STATE RELATIONS; II. ANTHROPOLOGICAL ASSUMPTIONS AND THE FIRST AMENDMENT; A. THEOLOGICAL ANTHROPOLOGY; B. RATIONALIST ANTHROPOLOGY; III. THE CATHOLIC SCHOOLS AND THE FIRST AMENDMENT; A. SCHOOLS AND THE ONE BEST SYSTEM; B. STRICT-SEPARATIONISM; C. PROBLEMS WITH PUBLIC POLICY BY JUDICIAL REVIEW; IV. CONCLUSION; CHAPTER 8 THE IMPACT OF NEUTRAL RULES ON HIERARCHICAL CHURCHES; I. THE SUPREME COURT'S NEUTRAL RULES APPROACH; A. JUDICIAL DEFERENCE TO HIERARCHICAL CHURCHES; B. NEUTRAL RULES; C. PROBLEMS WITH NEUTRALITY; II. QUESTIONS ABOUT THE IMPACT OF NEUTRAL RULES ON HIERARCHICAL CHURCHES; A. THE SECULAR COURT'S COMPETENCY OVER CHURCH DOCTRINE AND LAW; B. CONGREGATIONAL V. HIERARCHICAL CHURCH GOVERNMENT; C. TORT LIABILITY FOR ESSENTIALLY RELIGIOUS DECISIONS; D. EXCESSIVE ENTANGLEMENT AND JUDICIAL REVIEW; E. GENERALLY APPLICABLE LAW AND RELIGIOUS FREEDOM; III. CONCLUSION; CONCLUSION; I. LAW; II. PERSON; III. COMMUNITY