What would canon lawyers like Ed Peters make of this?
I suspect that there are some Orthodox who would agree with Mr. McCall's critique and what it says about the Roman understanding of the papacy.
Unlike modern liberal conceptions of law dominated by floods of detailed legislative and administrative texts, the Traditional understanding of law is much richer. Gatian, the 12th century father of Canon Law, began his great textbook on Canon Law by defining law with the following general summary: “The human race is ruled by two things, namely, Natural Law and long-standing custom.” Law is comprised of two pillars, the precepts established by God which can be known by the use of right reason (Natural Law) and time honored customary norms. Notice what is missing from this definition: statue, ordinances—the very life blood of modern Liberal legal code-based systems.
The omission is not due to Gratian’s ignorance of such legal forms of rules. Just a few pages later he lists statutes and ordinances within a more detailed list of specific types of laws or leges. Yet, these ordinances are circumscribed and thus limited by the two opening categories of law, Natural Law and custom. The Traditional understanding of the role of statutes was that they merely confirmed in writing what was already known either by the use of right reason or the observance of long standing customs. Legislators did not see themselves as making laws de novo but rather of discovering, clarifying and recording with precision the contents of laws which pre-existed in the Natural Law or long standing custom. The traditional role of a legislator was jus dicere or “to speak the law.” Such a phrase implies the role is one of making known—or speaking—the law rather than creating it.
Isidore explains in a passage quoted by Gratian: “It does not matter whether it [custom] is confirmed by writing [i.e., a statute] or by reason [i.e., Natural Law], since reason also supports ordinance. Furthermore if ordinance is determined by reason, then ordinance will be all that reason has already confirmed.” Statutes are a part of a system founded on Natural Law and customary norms. Its legitimacy is dependent upon them. Gratian comments after this passage that “in part, custom has been collected in writing and, in part, it has been preserved only in the usages of its followers. What is put in writing is called enactment or law, while what is not collected in writing is called by the general term custom.”
When the ancient Romans produced their first written laws in the mid fifth century B.C., the Law of the Twelve Tables, these statutes were not seen as newly created laws but merely a written record of the ancient Roman customs that had been in use for years. It was written down so that it could be better known and so as to reduce disputes about its contents. This characteristic was common to all the great written legal products up to the nineteenth century.
The concept of a newly devised Code purporting to embody all of the law of a society being promulgated and imposed upon a society was unprecedented before the Enlightenment. Although sometimes called “codes,” the Traditional projects are more accurately described as compilations. Thus, the great Corpus Juris Civilis of the Emperor Justinian in the sixth Century A.D. was not a new Code of law (in the sense of the 1917 Code) written by politicians and bureaucrats and imposed on the Christian Empire. It was a collection of the Imperial and Senatorial enactments and the opinions and interpretations of well known Roman jurists compiled by scholars from the mass of these documents and collated into a single set of books. The law books promulgated by Justinian did not “change” the law but merely presented the laws in an organized way – a record of the pre-existing longstanding and organically developed legal system.
Gratian did the same thing for the law of the Church. His Decretum is a collection of constitutions of Ecumenical and local Councils and Synods, juridical decisions of Popes, commentaries by Father’s of the Church and writings of philosophers and theologians—all arranged topically and interspersed with introductions, interpretations and commentaries by Gratian. This monumental compilation, together with various supplements containing subsequent additional decisions and constitutions, was studied by jurists and used by canon lawyers as the living corpus of all of Ecclesiastical Law from the 12th century until 1917.
Although I have provided only a limited description of the Civil Law of Justinian and the Canon Law of Gratian, we should be able to see that it is a much more flexible, living, organic, nuanced and varied form of legal system than a modern Code. Gratian and the scholars working for Justinian did not create the law out of thin air based on pure disembodied reason. They respected law as a living system developing through the application of right reason and customary norms to new situations and circumstances and through the slow, almost imperceptible, growth and development of customs. They approached law with a humility unknown to modern Code drafters. Law was a treasure preserved yet perfected slightly by each generation. Since law involved the working out in detail of such complex penumbras as equity, goodness, rightness and justice, no single person, or even group of persons, in a particular place and time should dare claim to compose the entire corpus of law. To do so would seem the height of hubris to the classical and Traditional minded jurists for over two millennia.
Is Mr. McCall opposing the Code of Canon Law with a Anglo-American Common Law mentality?
One way to see the stark difference in approach between Traditional legal systems and modern ones (such as the Code of Canon Law) is to look at the relationship between authority and time. In the modern liberal system, authority is linked to novelty. The newer the law, the more authority it carries. Thus, the 1983 Code of Canon Law has greater authority over provisions in the 1917 Code because it has been enacted more recently.
The Traditional understanding of law was just the opposite. The older a particular law or legal norm could be demonstrated to be, the greater authority attributed to it. Customs which existed “since the memory of man runneth not to the contrary” were seen as much more reliable, and thus authoritative, than newer and novel norms. Opinions of ancient thinkers, jurists, philosophers, popes and saints that had stood the test of time were more authoritative than something dreamed up yesterday. Again the ancient attitude is filled with humility and acceptance of human failing.
A newer law carries "more authority" because it may replace or modifies the older law. Does Mr. McCall deny that the Pope (or any other ruler) has the authority to issue new and different legislation?
Authorities such as the Pope or a secular ruler have plenary authority to make statutes (particular laws) to clarify, sanction and make more particular the principles of Natural Law and Custom. Yet, even if his will makes these laws, a ruler’s will must flow from these two fonts of law. A prince who legislates outside of this legal hierarchy becomes a tyrant. Customs can be overturned by statute but such an extraordinary act is reserved for the suppression of bad customs, those contrary to the Natural or Divine Law. Rulers and authorities are thus the guardians of a slowly and organically developing human law which has its origin in Natural Law and historical Customs.
Mr. McCall then discusses the centralization of secular authority and the development in how it was understood and applied, culminating in the changes introduced by the rationalists and the French Revolution.
Yet, the Church who had been the model for virtuous jurisprudence for a millennia did an about-face as the twentieth century dawned. Rather than the secular realm imitating the jurisprudence of the Church, the Church decided to imitate, or accommodate herself, to the secular world. If Codes were the new thing, the Church needed to get with the times.
Cardinal Gaspari was appointed head of a committee that was to study the history of the corpus juris canonici with the purpose of composing a codex juris canonici, a Code of Canon Law. Written by committee it was imposed on the Church by the will of the prince, Pope Benedict XV. With this single act the enormous, intricate tree of ecclesiastical jurisprudence that had been growing up over centuries, with Gratian at its roots, was cut down and replaced by a product of a single committee of a particular time and place.
In fairness, the provisions of the Code of 1917 were fairly conservative and compromises were added that paid a nod to the validity of custom which to the extent not inconsistent with the Code was allowed to remain in force. Still the revolutionary axe had been laid to the root. Custom, tradition, Natural Law were replaced by the work of a committee and imposed by the will of the Sovereign Pontiff.
The utter futility of the project was evident, as with all Codes, to those with eyes to see. Law is meant to be a living organism, developing, growing and being pruned over time in light of new climates and conditions. As with all the European secular Codes, this rationalist work that was meant once and for all to definitively fix all the laws of the Church was revised and supplanted by yet a new definitive Code—the Code of Canon Law of 1983. As could have easily been predicted, this later creation incorporated more liberal ideology and language than its ill-begotten parent.
Critics of a certain notion of papal authority may draw a connection between the issuing of the Code of Canon Law with Vatican I. Mr. McCall himself compares the writing and promulgation of the two Codes of Canon Law with the creation and imposition of the new Roman missal.
To achieve both revolutions, a new understanding of authority needed to be promoted. It is one in which the Pope is unconstrained by Custom and eternal principles. He is the master of the Church, the sovereign prince, and can impose a new Code of Law or a New Ordo of Mass at will. Even Pope Paul VI exhibited discomfort with this novel autocratic accretion to the office of the Vicar of Christ on Earth. He could not bring himself to clearly supplant the ancient customary Liturgy of the Church with the fabricated new one.
Now what did the 1917 Code of Canon Law do to reverse or abrogate custom? And how were such changes negative? Did they damage the Church's authority and credibility? (How many people besides clerics and canon lawyers were familiar with the changes?) Do both codes sufficiently allow for the continuation of local law and custom to mitigate his criticisms?
Links:
1917 Code of Canon Law
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