by
Arturo Cattaneo
Professor at the Pontifical University of the Holy Cross
and in the Theological Department of Lugano
A brief look at the bibliography of E. Corecco is enough to gain an appreciation of the importance of his contribution to canon law. In addition to his studies on constitutional canon law, which are collected in this volume, one must above all consider his articles on the nature and method of canon law. A summary of these articles forms a book whose English translation is entitled: The Theology of Canon Law. A Methodological Question, Pittsburgh 1992. The key to understanding and evaluating the scientific contribution of this illustrious Swiss canon lawyer is found in his conception of canon law, and so we will pause there to put it in the proper light. Other issues should also be mentioned to which he dedicated less space, but which show the broad range of his interests: ecclesiastical law of the State, relationship between Church and State, the administration of justice and of the canonical judgment, the role of the Catholic university, and others as well.
The value of his contribution comes not so much from its broad range as from the innovative spirit with which he confronted the various issues. The desire to contribute to a renewal of canon law, and the originality of some of his proposals are in fact expressions of his deep love for the Church and especially for the Roman Pontiff as the first representative of Christ on earth, and, as such, the principle and foundation of the ecclesial communion.
Obviously it will not be possible in these few pages to analyze the different aspects of his scientific output or of the development of his thought, or even to indicate in what the originality of some of the solutions he proposed consists. A series of studies on the contribution of Corecco is found in the Acts of the Symposium held in Rome in November 1996 to commemorate four great canon lawyers of the second half of the century, among whom was Corecco himself. Other congresses and studies will help lead to an understanding of the value of his proposals. In this work, however, we will limit ourselves to indicating that which seems to us to be the key to understanding and appreciating his scientific works
.
1. Law in the Service of Communion
The title which we have chosen for this collection refers to the thread of Ariadne which runs through his reflections on canon law, which is the conviction that ecclesiastical law should be elaborated and renewed as an intrinsic element of the mystery of communion which is the Church. Canon law should thus necessarily be understood in a perspective of faith, and should be studied as a theological, and not merely juridical, science.
In order to understand the originality of the proposal of Corecco and his attempt to propagate it, it is necessary to situate it among the various currents of contemporary studies in canon law. They are differentiated above all according to the relevance which they attribute to two aspects of canon law: the theological aspect and the juridical aspect. The different ways of putting these in relation to each other, of making one a determinant of the other, and of therefore characterizing that which we could call the “canonistic method” has given rise to the so-called schools of canon law. The epistemological and methodological issues are clarified and resolved differently, in accordance with the priority that is attributed to the one or the other aspect. Canon law can in fact be understood essentially as an ecclesial reality when specified juridically, or as an essentially juridical reality when specified ecclesiastically. In the first case, it will be studied as a theological science, and in the second as a juridical science. 1
Eugene Corecco must surely be included among the most convinced proponents of the first position. The Swiss canonist had zealously taken on and propagated the appeal of his master Klaus Mörsdorf to have canon law understood as an essential element of the Church and to promote a renewal of the study of canon law with an acknowledgment of its theological nature. 2
It is necessary to discern the theological nature of canon law if one is to understand the profound differences existing between it and secular law. This discernment becomes ever more important in relation to the degree in which secular law appears to be increasingly affected by positivistic formalism. The impulse given to the study of canon law by Mörsdorf and Corecco thus tends to make it more attentive to the mystery of the Church, to the kerygmatic-sacramental configuration of its life and necessities which derive from its salvific mission.
The conception promoted by Mörsdorf and developed by Corecco has aroused great interest and approval in vast sectors of canon law and has found important recognition in the Magisterium of both Paul VI and John Paul II. Clear testimony of this can be found in some important discourses of Paul VI on canon law, which he referred to as a “ius sacrum, prorsus distinctum a iure civili” by the fact that it is concerned with a “ius societatis visibilis quidem, sed supernaturalis, quae verbo et sacramentis aedificatur et cui propositum est homines ad aeternam salutem perducere.” 3
This position was also criticized, however, and at times in an almost radical manner, by canon lawyers of other Schools. The most widespread misunderstanding concerning the theological understanding of canon law proposed by Corecco is the idea that such emphasis would lead to a loss of its juridical nature, which would then cause it to be dissolved into theology at the expense of its juridical nature, of its authority to command, of its power to bind, and of the precision required by every legislative order. At the basis of this misunderstanding there seems to be an equivocation concerning the concept of theology, of theological discipline, and thus of the notion of rendering theological.
An essential presupposition for every scientific debate is agreement concerning the meaning of the terms used. Before all else, therefore, it will be helpful to clarify the fundamental terms employed by Corecco.
First of all, it must be remembered that theology is to be understood as all knowledge of God and of His salvific plan in the light of faith (which implies communion with the Church, and, especially, the guidance of the Magisterium). In this broad yet at the same time, in virtue of the light of Revelation, profoundly unitary vision, various theological disciplines can be distinguished according to the different perspectives by which the one plan of salvation can be contemplated: systematic, moral, spiritual, pastoral, liturgical, historical… and juridical.
This is why canon law cannot be considered as a merely juridical science, as if it had the same formal object and method as secular juridical science. That would be equivalent to marginalizing or excluding from the study of canon law the consideration that the nucleus of its norms belongs to Revelation, along with the consequences which follow from it.
In this way one can understand how a theological conception of the study of canon law does not at all imply a loss of its juridical nature. Corecco, in one of his earliest works, together with his friend and colleague A.M. Rouco Varela, affirmed with great clarity: “There could be no greater equivocation than that of confounding – or identifying – the emphasis on the theological nature of canon law with the loss of its juridical nature. The same ecclesiological data which led us to affirm its theological quality constrain us to recognize its juridical character.” 4 In a later work Corecco added and explained: “The fact that canon law is rendered theological or sacramental does not lead to a loss of its juridical nature, since the normative character which emerges from the Church – as witnessed by the institution of excommunication – is an unmistakable sign of an authentic juridical nature, that is, of the existence of a binding injunction for the intersubjective relationships of Christians with regard to the ecclesial authority and between themselves. In fact, there is no reality more strongly binding and imperative than the fact that God manifests Himself to men through the historical concreteness of the Church. (…) Canon law has a binding force that is that much greater with respect to secular law to the degree that it is more profoundly rooted in the normativity of the ius divinum, not primarily natural, but positive, that is, of revelation.” 5
The collection of some of the principal writings of Corecco published in German was meaningfully entitled Ordinatio fidei. 6 In the introductory article, L. Gerosa uses the expression “ordinatio fidei” as the key concept of the canon law teaching of his master. 7 With this expression Corecco has sought in fact to show the consequences which, in the conception of canon law, must be drawn from the conciliar epistemological indication “in iure canonico exponendo… respiciatur ad Mysterium Ecclesiae” (Optatam totius, 16/d). In other words, it is a matter of extending the discussion concerning the theological nature of canon law to the subject of canonical laws, and to introduce the centrality of the faith into the very nucleus of their definition.
In order to understand the value of Corecco’s proposal, it must be remembered that the Code does not offer any formal definition of the canonical law. And therefore the task of the canon lawyer is to develop this definition and to explain the constitutive elements of the lex canonica. Up until now, canonical doctrine has limited itself to taking as a foundation the definition of law formulated by St. Thomas Aquinas: “Lex est quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.” 8 The innovative proposal of Corecco consists in affirming that the formal element of the canonical law is not sufficiently expressed by the expression ordinatio rationis and that this should be substituted by ordinatio fidei.
This proposal was also received with great interest, but it has also been criticized. The principal reason for the criticisms seems to us to lie in a misunderstanding. The substitution of “ordinatio rationis” with “ordinatio fidei” was interpreted, in fact, as if reason were excluded and substituted by faith. Various canonists have therefore proposed to maintain the expression “ordinatio rationis”, adding “fide illuminatae”. 9 An attentive reading of Corecco’s thesis leads us instead to recognize that his proposal does not at all imply such an exclusion or substitution, for the simple reason that faith does not substitute for reason, but presupposes it and illuminates it.
2. Consequences for Canonical Methodology
One of the most original aspects of the contribution of Corecco is found in the affirmation that canon law is not only a theological discipline, but that its method is also theological. In order to avoid misunderstandings, it is necessary first of all to observe that this should be taken “not as a definition, but as a criterion of orientation.” 10 This is a criterion which indicates above all that in canon law methodology is not foreign to its theological essence, but a way of thinking adequate to the nature of ecclesial law. “Methodology,” Correco has observed, “must be defined starting from the object and not vice versa.” 11
Basically, it is simply a matter of drawing the methodological consequences from the theological nature of canon law and from the central role played by faith for a correct understanding of it. That which Corecco wished to avoid was above all the error “of believing that after having demonstrated the existence of a theological status of canon law, it would still be possible to treat it from the juridical perspective as a secular reality.” 12 Therefore, he affirms: “The science of canon law must rigorously apply theological method, leaving juridical method – as it has been developed by modern juridical science – to the role of a solely auxiliary discipline, because the connection between divine law and canonical-human law can be established only within the logic and methodology proper to faith.” 13
Here also it is necessary to briefly explain the meaning of the expression “theological method.” Theological method (or the logic of faith) consists essentially in taking the principles offered by Revelation as the foundation, and in proceeding according to the light of faith (and thus with the guidance of the Magisterium). Precisely on account of this centrality of faith, theology was traditionally called scientia fidei. Theological method, which is common to all theological disciplines, finds in each one a certain specification, in harmony with the characteristics of their corresponding point of view. This implies that juridical method receives from faith an intrinsic modality. The canonist is distinguished therefore “from a dogmatic or other theologian, because the material object of his knowledge is not the Christian mystery in its entirety, but simply its juridical-institutional implications, whether they are of divine or human law.” 14
Once we have ascertained that canon law, by reason of its intrinsic connection with the Church – and thus with Revelation – requires to be studied with principles, criteria, and categories determined by faith, one can understand the observation of Corecco that, “from the methodological point of view, this means that juridical method – in that it is an expression of human rationality – cannot be applied to canon law in an autonomous way, but must be subordinated. (…) It should be observed that we are dealing with a subordination that is not only extrinsic, but intrinsic to faith, since the latter cannot be considered only as an external horizon within which juridical science can still move in an autonomous way, avoiding simply to go beyond the limits of theology. This procedure would permit one to treat canon law as a secular or mundane reality. In order for canon law to remain an authentically ecclesial reality without undergoing a secularization which would compromise its nature, the final principle which intrinsically informs its method cannot be anything other than faith.” 15
Elsewhere Corecco has also emphasized that “in canonical method it is not sufficient, as the Italian school has maintained, to use theology as if it were only an extrinsic horizon, within which the juridical discourse must be carried out so as not to trespass on conclusions that would be heterodox from the ecclesiological point of view. (…) The theological element must inform from within the method of the general theory, because it is an essential element of the canonical discourse as such.” 16
After these terminological and conceptual clarifications, it is easy to understand why theological and juridical methodology do not mutually exclude each other as an aut … aut, but contribute, each in its own way, to shape canonical methodology. Concerning the complementarity between the two aspects of canon law, the Swiss canonist has observed: “In the same way that its theological reality is also juridical, so its juridical reality is also theological without any possibility of symbiosis.” 17 This complementarity is reflected in its methodology in so far as it is fundamentally theological and specified or characterized by its juridical perspective, which is the special point of view of this science.
Corecco’s reflections emphasize the fact that canon law is not a human superstructure, but an essential element of the Church as sacramentum salutis, and it is in this perspective that it also is to be understood. Otherwise, how could one avoid the danger of canon law losing its nature and falling into positivism and formalism? And how else would it be possible to penetrate into the sense and characteristics of the norms and juridical institutions of the Church? Corecco has thus justly put in evidence the necessity of conceiving canon law theologically and the importance of applying theological method in the study of canon law.
A conception of canon law as a merely juridical science would, in fact, have difficulty in avoiding the danger of introducing into the Church a juridical vision of ecclesial life on the model of that of civil society. In this regard it has been observed: “The characteristic of the law of the Church clearly emerges above all in the way in which Corecco treats the central question of the ecclesiastical constitution, which is the question of the relation between institution and constitution in the Church, as well as the corresponding question concerning ecclesial power. For the clarification of these questions, one must begin with theological data, and not with a constitutional model stemming from a consideration of the state.” 18 John Paul II has spoken in this way on the occasion of the presentation of the new Code: “It is from this marvelous ecclesial reality, visible and invisible, one and multiplex at the same time, that we must consider the ‘Ius Sacrum’, which is vigilant and works within the Church. It is a perspective which evidently transcends that which is merely historical and human, although it confirms this and gives it higher value.”
1 On this issue cf. A. Cattaneo, “Die Kanonistik im Spannungsfeld von Theologie und Rechtswissenschaft. Zur gegenwärtigen Diskussion über Epistemologie und Methode der Kirchenrechtswissenschaft,” in AfkKR 162 (1993), 52-64; “Teologia e Diritto nella definizione epistemologica della canonistica,” in Ius Ecclesiae (1994), 649-671; “Teologicidad y juridicidad de la canonística. Klaus Mörsdorf y su concepción de la canonística como disciplina teológica con método jurídico,” REDC 51 (1994), 35-49; “El debate científico en torno a la síntesis teológico-jurídica de la canonística propuesta por Mörsdorf y su escuela” in REDC 52 (1995), 81-98.
2 In the broad range of canonists educated at the Canonical Institute of the University of Munich, Corecco is not the only one to have acquired this epistemological conviction. The names of W. Aymans, G. May, and A.M. Rouco Varela are well known in the international scholarly world.
3 Paul VI, Discourse to the Refresher Course for Members of Ecclesiastical Tribunals, 13 Dec.1972, in AAS 64 (1972), 781. The Pope spoke in the same terms to the Roman Rota on 8 Nov. 1973, in AAS 65 (1973), 96.
4 E. Corecco and A.M. Rouco Varela, “Sacramento e diritto: antinomia nella Chiesa? Riflessioni per una teologia del diritto canonico” (Milan 1971), p.61.
5 E. Corecco, “Il problema dell’unità del diritto nel pensiero filosofico antico e cristiano,” in O. Fumagalli Carulli,Società religiosa di fronte al Concordato (Milan 1980), p. 53f. This article is also found in the voloume of E. Corecco, Theologie des Kirchenrechts. Methodologische Ansätze (Trier 1980), p. 97f.
6 E. Corecco, Ordinatio fidei. Schriften zum kanonischen Recht, edited by L. Gerosa and L. Müller (Paderborn 1994).
7 L. Gerosa, “Lex canonica” als “ordinatio fidei,” in ibid., p. XVI.
8 S. Th., I-II, q. 90, a. 4, c.
9 Cf. J. Listl, “Die Rechtsnormen,” in Handbuch des katholischen Kirchenrechts (Regensburg 1983), p. 87; F. X. Urrutia, “De natura legis ecclesiasticae,” in Monitor Ecclesiasticus 100 (1975), 417; G. Ghirlanda, “De recta iuris ecclesialis methodo semper servanda,” in Periodica 68 (1979), 720-721; J. Hervada, Pensamientos de un canonista en la hora presente (Pamplona 1989), pp. 18-20.
10 E. Corecco, L. Gerosa, Il diritto della Chiesa, vol. 12 of AMATECA (Milan 1995), p. 59.
11 E. Corecco, “Diritto,” in Dizionario Teologico Interdisciplinare, vol. I (Turin 1977), p. 146.
12 E. Corecco, “Il problema dell’unità del diritto nel pensiero filosofico antico e cristiano,” loc. cit., p. 54.
14 E. Corecco, L. Gerosa, Il diritto della Chiesa, loc. cit., p. 60.
15 E. Corecco, “‘Ordinatio rationis’ o ‘ordinatio fidei’? Appunti sulla definizione della legge canonica,” Strumento Internazionale per un Lavoro Teologico: Communio 36 (1977), 67-68.
16 E. Corecco, “Orio Giacchi,” in L’insegnamento del diritto canonico nell’Università del Sacro Cuore dalle origini alla nuova codificazione,” extract from Jus – Rivista di scienza giuridiche 39 (1992), 289.
17 E. Corecco, “Il problema dell’unità del diritto nel pensiero filosofico antico e cristiano,” loc. cit., p. 54.
18 L. Müller, “Ordo ecclesiae. Fondazione teologica e teologia del diritto canonico secondo Eugenio Corecco,” in Antropologia, fede e diritto ecclesiale. Atti del Simposio Internazionale sugli studi canonistici di Eugenio Corecco, ed. by L. Gerosa (Milano 1994), p. 112.