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Chapter 1

Introduction

 

I. Hans Dombois.

Hans Dombois was born October 15, 1907.3 Although his French name indicates that his ancestors were Huguenots and fled France during the persecution of this protestant religion, Dombois is Lutheran (evangelisch). He studied civil law and acquired a doctorate in law a few years after the Second World War. He worked mainly as a public prosecutor and a judge. Being interested in theology and canon law, however, he served for many years on commissions of the Lutheran Church on canon law4 and on


3 The Zeitschrift für Evangelisches Kirchenrecht dedicated the Fall number of 1987, no. 3 of vol. 32, as a Festschrift to celebrate his 80th birthday.
4 After the Second World War the Lutheran Church in Germany could not refer to the state for her legal structures any more and had to work on developing a more ➝

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the Canonical Workshop of Heidelberg,5 and he wrote many publications on the theology of law. Because of his merits in that field he received a doctor honoris causa degree in theology.

His background in civil law accounts for his juridical approach to theological questions. This approach is often not appreciated by theologians and is probably not always easy to follow for those who are without a juridical training. Furthermore, Dombois has been a fervent defender of the need for a distinct and clearly formulated canon law,6 which position does not have a strong tradition within the Lutheran Church. These may be some of the


➝ elaborate canon law of her own. Dombois served on the commissions that prepared many of the innovations.
5 Kirchenrechtliche Arbeitsgemeinschaft Heidelberg.
6 Dombois greeted the fact that the end of the episcopal authority of the German princes over the Lutheran Church (das fürstliche Summepiskopat) after the First World War and the struggle between the Confessing Church (Bekennende Kirche) and the State Churches (Länderkirchen) during the Nazi regime (Kirchenkampf) freed the Lutheran Church from undue influence of the state in the Church. Only the one who confesses the faith — which the state as such cannot do — can give the Church her law (I:9-10; 12; 68-70; 73). Legalism and juridical positivism, which theories conceive the content of the law solely dependent upon the will of the legislator, were wide spread among lawyers and the leaders of the official Lutheran Churches before and during the Second World War so that they did not have a critical approach of the Nazi regime. Dombois’ involvement in the Confessing Church, therefore, accompanies his rejection of legalism and juridical positivism and his favoring of natural law. Cf. U. Scheuner, “Zur Rechtstheologie von Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 23 (1978):3.

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reasons why, although his reflections are highly respected, his ideas have nevertheless not met with many enthusiastic reactions and have not been received and integrated into other works on theology of law in Lutheran circles. On the other hand his theological position, at least in its wording, stays very much traditionally Lutheran: this makes it less accessible and acceptable for Catholic theologians and canonists.

Throughout his life Dombois has been interested in the ecumenical question. Therefore his reflections on the foundations of canon law and on the theology of law, which were the central focus of attention in his scientific work, have always had an ecumenical orientation.7 It is important that he gave his main work, on which this thesis concentrates, the sub-title “Ecumenical Canon Law.”

His ecumenical interest may have been one of the reasons why Dombois became a member of the Michaelsbruderschaft. This organization tried to take up within the Lutheran Churches the old tradition of religious life. The members are all protestants but come from different denominations. They life a kind of community life in which community prayer and the celebration of the Eucharist have an important role. Thus Dombois has linked his theological reflection with praxis


7 P. Landau, “Vorwort,” Zeitschrift für Evangelisches Kirchenrecht 23 (1987):241.

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pietatis: and he considers this approach to be ideal.8 This not only sheds light on his interest in liturgy and on his methodological emphasis on reflection on the liturgical practice of the Church as source for canon law,9 but it also sheds light on the — in Lutheran eyes — catholicizing aspects of his thinking. The latter were often not welcomed within Lutheran theology, another reason for the limitedness of his influence within the Lutheran Church.

 

II. Dombois’ Method

Dombois tries to give a general theory of canon law which is valid for the entire Church, the One Church of Jesus Christ.10 He calls his method for coming to such a theory inductive-phenomenological, as opposed to deductive-philosophical.11 To gain insight into what the Church is one first has to look at what she does. By analyzing the actions of the Church in which she expresses herself as such, one can inductively find what makes the Church to be


8 III:221-224.
9 J. Hoffmann, “Grâce et Institution selon Hans Dombois. Une nouvelle approche du mystère de l’Église,” Revue des Sciences Philosophiques et Théologiques 53 (1969):65, nt. 37.
10 I:11.
11 I:53; 80; III:9.

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the Church of Jesus Christ.12

Existential interpretation of what happens in the Church is always juridical interpretation.13 This kind of phenomenological analysis of the Church’s actions — and not deduction from some philosophical insight into the essence of the Church — will make clear what canon law is and what its content should be, for “canon law has to ask about the juridical understanding, expression and constitution of the Church’s legitimate actions.”14

To understand what this means in practice one must take into account that the Church is not one any more but is divided into many different Christian churches whose origin must be examined.15 This history of schisms shows that “the essential and interrelated (dialectic or complementary) opposites that are to be found in the


12Esse sequitur operari and not the other way around (II:15).
13 I:894; II:14-15. This key point in Dombois’s reasoning has to be looked at more closely in Chapter 4, Paragraph I.
14 “... dass das Kirchenrecht nach dem rechtlichen Verständnis Ausdruck und Verfassung des legitimen Geschehens der Kirche zu fragen hat.” (I:771). Cf. also III:288.
15 To be able to understand what Dombois’ method encompasses especially in its ecumenical perspective, we have to look at part of his ecclesiology, namely his theory on the fact that the one universal Church of Christ — which I will indicate by the capitalized word “Church” — exists divided into many Christian churches. The following part of this paragraph, therefore could be repeated at the beginning of Chapter 2, Paragraph III which treats his ecclesiology as a whole.

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Christian faith are broken apart and have disintegrated into their elements.”16 Through this process of disintegration17 one or more of the essential elements of the Church have been overemphasized by the different individual confessional churches (Konfessionen) to the neglect, meanwhile, of the others.18 The emphasis is reflected in their juridical constitutions.19 The process has the advantage that “through the existentialization of one part a new positive concentration in particular formations has become possible.”20 Its disadvantage is that the different churches start to “suppress from consciousness the partiality that has come about and to replace it with the postulate that the part is virtually


16 “... die im christlichen Glauben erhaltenen wesentlichen und bezüglichen (dialektischen oder komplementären) Gegensätze sind aufgebrochen und in ihre Element auseinandergetreten;...” (II:65)
17 This process can be initiated by forces from within or from outside the Church (II:73-79; 80-81).
18 An example would be the element of the Church’s universality, which is overemphasized by the Catholic Church and institutionalized in the supremacy of the pope, or the element of the individual congregation, which is overemphasized in the reformed churches and institutionalized in their congregational structure.
19 II:87-88.
20 “... durch die Existentialisierung eines Teils eine neue positive Verdichtung in partikularen Gestaltungen möglich geworden ist.” (II:66)

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the whole.”21

The process of overemphasizing one or more elements of the Church, however, is not breaking away from the original faith: the essential elements of the Church that are not emphasized by a particular church are not and cannot be totally dogmatically or spiritually negated. A confessional church can claim validity, but not total validity. Systematically and historically it cannot be accepted that one confessional church claims to be the only one with the right and full understanding of the faith and to be the only church in the full sense of the word. Because of the prevalence of one or some elements, other elements are lacking or only present in a deficient way, so that these churches can only exist under the condition of the existence of the universal Church which surpasses them all and brings them together. The confessional churches mediate the universal Church.22 The different confessional churches are founded upon the old professions of faith — the apostolicum and the Nicene creed — next to their own secondary dogmatic formulations.23 Furthermore, it is important that “the individual historical forms, which in time came one after


21 “... die eingetretenen Vereinseitigung aus den Bewusstsein zu verdrängen und durch das Postulat zu ersetzen, dass dieser Teil virtuell das Ganze sei.” (II:66)
22 III:14; 113-114.
23 III:135-140.

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the other, at the same time stay in existence one next to the other.”24 The analysis of the different Christian churches, therefore, does give access to the whole, to all the essential elements of the Church.

In addition to their emphasis on different essential elements of the Church, the confessional Churches have different juridical structures and canonical traditions. Canon law history is, however, not a history of falling away from the original, instituted juridical structures of the New Testament Church. Every historical situation calls for a new form of canon law. There is no absolute form in history that one can and should go back to. A theory about canon law should not limit itself to one form or one tradition but should study all developments and by doing so it will come closer to the essence of what constitutes canon law (Kirchenrechtsverfassung).25

The study of canon law tries to make the analysis of the essential elements of the Church in the different Christian traditions from a juridical perspective, concentrating on covering all the essential elements; thus it is ecumenical from the very start. At least there are ecclesiastical actions that are common to all confessional churches. These actions can serve as a foundation for a


24 “... die einzelnen historischen Formen die zeitlich aufeinanderfolgen zugleich nebeneinander bestehen bleiben.” (II:66)
25 II:21-26; 33.

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general, ecumenical canon law.26 Thus canon law can become the basis for an ecumenical movement in which the different churches leave behind their partiality and reintegrate other essential elements of the Church with the ones they emphasized — elements with which they are still linked up through their Christian faith.27


26 II:172-176.
27 II:65-66; 87-89; 93; 101-102.