I. Justification and Salvation.
The theology of justification behind Dombois’ theory concerning the fundaments of canon law is classically Lutheran.1 Man2 claims against God to have lordship over creation. He has not acknowledged God’s exclusive claim of lordship over man and creation and thus has committed sin. Now man has to stand trial before God, a trial which he
1 A more elaborate presentation of Dombois’ thinking on justification will follow in Chapter 4, Paragraph V.
2 Unfortunately English doesn’t have a non-sexist translation for the German neutral word Mensch. The disadvantage of using the word “mankind” as translation is that mankind is a collective concept whereas the word Mensch — as well as the word man, for that matter — can have either a collective or an individual meaning. To keep the text legible and to stay as close to the German text and to Dombois’ train of thought as possible, I will have to use “man” as a translation for the term.
necessarily will lose. God, however, fulfills man’s duty vicariously through the Son: Jesus Christ brings to the Father through his sacrifice on the cross the obedience which man owed to God. By fulfilling God’s claim, the Son — and through him God’s own love — does justice. Through acceptance of Christ’s death for man, he can be justified before God and survive the trial; this acceptance has to start with the admission that one is a sinner.3
Dombois strongly denies that the traditional teaching on justification through faith leads to the position that justification is an individual act and that becoming a member of the Church is a subsequent act. In his view justification is not simply an individual act; rather, incorporation into the Church is a constitutive part of the process.4
Dombois sees the human being as essentially part of a social structure. Without a community we cannot live. This becomes more concrete in our need not only of a social environment but also of a structuring of that milieu. This structuring takes place first and foremost
3 I:139; 286-287; 190; III:21.
4 I:251; III:27. Cf. Chapter 4. Paragraph V in which this aspect of Dombois’ reasoning will be worked out.
in institutions, understood in the sense of personal institutions: social relationships, which are necessary for human beings, will take shape through the process of institutions, which refer these human beings to already existing models of relationship. Dombois calls this need for institutions our “institutionality”, thus indicating that law belongs essentially to human beings.5 At least law of grace, which manifests itself through personal institutions, is always present in human society.6 Concentrating on human beings as individuals since the 12th and 13th century has drawn attention away from community and human institutionality and has fostered the reduction of law to normative law.7
a. Church as institution.
According to Dombois, the Church is not just an ideal human society, the example for the world from within with which the world could coincide once it transforms itself — or is transformed — into a just and loving community. The Church has her foundation in God’s grace: she has her guiding principles in the acts of Christ, his mission and
5 I:925; III:23.
his sacrifice, upon which the mission of the disciples and the calling of the new people of God follow; and she has the structure of communio sanctorum. In short, the Church is totally different from a human society or association which is human-made by the free joining up of human beings into a social structure.8 She also is not the result of a freely coming together of human beings that have come to a new spiritual existence through salvific grace; she is communio sanctorum not congregatio sanctorum. The Church is prior to the individual christian.9
Looking at the Church as institution does not mean subsuming her under a sociological or juridical category but looking at her legitimate structure, which is the life-giving process of institution to Child-of-God-and-belonging-to-Christ. Human beings cannot acquire the status of persons before God on their own.10 Justification and acquiring legitimate existence before God require
8 I:57; III:317; 319-320.
9 I:25; 38; 74; 79. Dombois’ view that justification is a process within the community of the Church and not something which happens to an individual on his own, is not readily acceptable to Lutheran thinking. The full understanding of how he sees justification and incorporation into the Church as one process can only become clear when we will address the juridical interpretation of theological categories. Cf. therefor Chapter 4, Paragraph V and Chapter 5, Paragraph III.
10 If anything, the institutionality of human beings brings with it the requirement that salvation, which addresses human beings as a totality, comes together in a personal institutional form.
partaking in the institution of the Church. “The Church herself is institution in as much as she herself as soma Christou is the place and the totality of the processes of personal institution, through which human beings are incorporated into the Body of Christ and are put at their place of service within it.”11 She is process, grace. She is the result of God’s grace, God’s giving of Himself. The Church “is founded upon nothing else but the law of grace of baptism, in which Christ has given us community with Him and with each other.”12 Her opus proprium, the essential actions in which she expresses herself, are personal institutional processes like the sacraments through which she institutes human beings into this process of God’s Self-giving.13
The Church should not be reduced to only personal institutions. She needs functional forms and therefore transpersonal institutions also. But the primary structures of the personal institutions are the more important: they are God made, whereas the transpersonal
11 “Die Kirche ist insoferne Institution als sie selbst als soma Christou der Raum und der Inbegriff personaler Institutionsvorgänge ist, durch welche Menschen dem Leibe Christi zugeordnet und in ihm an den Ort ihres Dienstes gestellt werden.” (I:920).
12 “... beruht auf nichts anderes als dem Gnadenrecht der Taufe, in welcher Christus uns Gemeinschaft mit ihm und untereinander geschenkt hat.” (I:326).
13 I:894-902; 920-921; 924-925. The details of this process will be the subject-matter of Chapter 4.
institutions are human-made. The diversification of different confessional churches14 has to do with overemphasizing one or more of the essential elements of the Church and giving it or them transpersonal institutional form. This diversification and this overemphasizing create the transpersonal institutional conditions for the becoming or being a Christian. The process of becoming a Christian, however, is the personal institutional process that alone really matters. The actions of the Church that are the personal institutions are the common roots of all the churches and form the objective limitations of the transpersonal institutions as well as the foundation of a general, ecumenical canon law.15
14 See Chapter 1, Paragraph II.
15 I:927-930; II:172-177. Dombois dedicates enormous parts of his work to analyzing the different confessional churches and their history to prove this point and to show which institutions are in fact secondary transpersonal institutions, e.g. II:103-172; 179-181. He calls the canon law which is based upon these institutions transcendental canon law. Transcendental canon law deals with the transcendental conditions of becoming a Christian and leading a Christian life within a particular confessional church, e.g. the submission to the authority of the pope in the Catholic Church, coming from the overemphasizing of the essential element of the unity of the Church. It does not directly deal with the primary forms of Christian life that are found in the primary institutions. Dombois is not interested in developing the transcendental canon law because these canonical structures are proper to the individual confessional churches and not ecumenical and therefore do not bear upon Dombois’ attempt to develop an ecumenical canon law. Ecumenical canon law has to analyze the primary personal institutions that are present throughout the entire Church and in some — sometimes ➝
The Church as an institution has to be concretized in the form of a constitution (Verfassung) which indicates the personal structure and the structure of competences. The primary forms are the local congregation which gathers for liturgy and the universal Church. The local congregation and the universal Church have equal dignity: the local congregations is not just a practical subdivision of the universal Church. The secondary forms are the particular church which unites several local communities for practical purposes and the religious order which forms communities expressing a certain distance from the world. These four constitutional forms are found throughout Church-history. The different confessional churches, again, have worked out the different elements differently.16
b. The Opus Proprium of the Church.
In Dombois’ view the existence of the Church does not precede her actions.17 He indicates
that the action of the Church that is incumbent upon her, her service and liturgy is not a secondary event, which only follows from her already present existence (operari
➝ only rudimentary — form in each of the confessional churches. By claiming universal meaning for their transcendental forms, the confessional churches can stand in the way of general canon law.
16 II:35-51; III:183-184; 266.
17 I:60; 693-694.
sequitur esse), but is the carrying out, after attaining proper understanding of it, of the relationship itself that exists between the Lord, the disciples and the world. The Church constitutes and proves itself through this service. But the service is not from the outset without structure or shape. On the contrary, its shape is given with that relationship and therefore not changeable in its essential fundamental characteristics.18
The Church is not a gathering after the event of individuals who have had an individual religious experience of salvation. Jesus Christ’s commandment giving his disciples their mission19 creates the Church. He institutes His disciples as apostles and through them his claim to faith and love is directed not only to them but also through them to others. This process repeats itself over and over again, new disciples make new disciples and all are through salvific grace incorporated into the Body of Christ and given their place and function in it.20
18 “... dass das gebotene Handeln der Kirche, ihr Dienst und Gottesdienst keine sekundäre Veranstaltung ist, die erst aus ihrer an sich vorhandenen Existenz folgt (operari sequitur esse), sondern der Vollzug des recht verstandenen Verhältnisses selbst is, in welchem Herr, Jünger und Welt stehen. Durch diesen Dienst konstituiert und bewährt sich die Kirche. Aber er ist von vornherein nicht strukturlos, nicht gestaltlos. Seine Gestalt ist vielmehr mit jenem Verhältnis mitgegeben und deshalb in den wesentlichen Grundzügen nicht veränderbar.” (I:375).
19 Dombois calls this Missionsgebot, which I will translate with “mission-commandment”. Sometimes he uses both Missionsgebot and Wiederholungsgebot (commandment to repeat) to indicate Jesus’ commandment to His disciples to preach and to administer the sacraments. When I will use “mission-commandment” I will mean both aspects of Jesus’ mandate to his disciples.
20 I:282-286; 290-296.
What exactly are the actions of the Church that in fact are the actions of Christ through which He still actively works? Most of the time Dombois mentions liturgy, i.e. teaching and preaching the Word (Verkündigung)21 followed by profession of faith22 and the sacraments.23 Man is, by
21 I translate Verkündigung consistently with “preaching”; the German word connotes more than the preaching within liturgy and also indicates the preaching of the Word to non-believers and catechumens.
22 Preaching and teaching in and of themselves do not make the Lord present, but do so in their consequence, namely when they are accepted in the profession of faith. (I:604)
23 Dombois is not always consistent in using the word liturgy. Sometimes he uses it to indicate the sacraments stricto sensu, sometimes he uses it in a broad sense, including preaching and teaching the Word followed by profession of faith. Early in the first volume he quotes Karl Barth who calls the profession of faith a liturgical action (liturgisches Geschehen). (I:43)
Dombois seems to refer to other essential actions of the Church that are institutional actions of Christ beyond liturgy in the broad sense, when he refers to the tres munera Ecclesiae. He only mentions the three munera very briefly in the first volume of “Das Recht der Gnade” (I:242; 244; 275, note 14) and more extensively in the third (III:349-354; 410-415). His treatment of the subject-matter, however, is quite short and not very clear. He assigns the different actions of the Church to the different munera as follows: the munus regale encompasses Church order, i.e. all the decisions that involve personal institution to membership in the Church or official ministry and mission; assigned to the munus propheticum are preaching, teaching and charity; and to the munus sacerdotale are assigned the Eucharistic worship and the power of the keys (III:410-415).
Although this way of interpreting the traditional teaching of the three munera can be questioned, we do not need to get into further detail. The only aspect that is important for our purposes is that Dombois mentions other essential actions of the Church in addition to those that are subsumed under his concept of liturgy in the broad sense. Although here he seems to mention jurisdictional decisions and charity as distinct from liturgy, I think that he treats jurisdiction in the rest of his work as the ➝
his own powers, not capable of rendering service to God. The sacrifice of Christ, however, has built community between God and man and set him free and made him able, through imitation of Christ’s sacrifice, to give God back what He Himself has given. This sacrifice that imitates Christ’s sacrifice is gratias agere, i.e. thanksgiving, and, as such, it is the necessary acceptance of grace through faith which builds anew and reenforces the community between God and man. This sacrifice is what is meant by leiturgia.24
➝ decisional aspect of the administration of sacraments (the power of the keys) and therefore still under liturgy (cf. Chapter 4, Paragraphs VI-IX). I think, using more traditional Catholic terminology, it is doing justice to Dombois’ theory to say that it concentrates on liturgy as a coming together of the munus docendi and the munus sanctificandi and that the munus regendi is present in the jurisdictional aspects of the sacraments, which he does treat: the only action that is lacking elsewhere in his theory is the diakonia, which is certainly an essential action of the Church. In any case, in his attempt in the rest of “Das Recht der Gnade” to relate canon law and the essential actions of the Church, he only refers to liturgy in the broad sense. In presenting his theory I will have to follow him in that. To be consistent with his own remark that “canon law is the law of all the munera” (“Kirchenrecht ist das recht aller munera.” III:304) however, he should have reflected on the canonical implications of the other essential actions of the Church too, at least the diakonia.
24 I:219-224; 226; 228. Dombois, by talking about the necessity of the liturgical sacrifice, accords more value to liturgy than protestant thinking would, since it only sees commemoration in the Eucharist and refuses to accept that human action can add anything to God’s acts of grace. He refutes the latter position by taking up the Catholic thought that acceptance of grace is not an individual act but has to take place as a liturgy, a community-celebration and manifestation.
The opening of liturgical gatherings by invoking the name of the Lord is an indication that the action is put under the domination of God, that it is worked by the Spirit and that the Word is present in it.25 “The verbal preaching of the Gospel and the real administration of the sacraments are two modes of one and the same Word of God which comes to us.”26 Preaching and sacraments belong together and form a unity.27 Because of the universality of the sacraments and the preaching of the Word throughout the Church we find here an ipso facto foundation for the unity of the churches.28
25 I:280-281; 363-366.
26 “Die verbale Verkündigung des Evangeliums und die reale Austeilung der Sakramente sind zwei Weisen ein- und desselben Wortes Gottes, welches zu uns kommt.” (I:410)
28 III:183; 186.