Canon Law is Law of Grace
I. Canon Law is Part of the Essence of the Church.
Dombois refuses the position taken by Sohm and many of his followers that canon law and Church are not compatible. According to Sohm’s position, which prevailed in the Lutheran Church, the juridical order that the Church needs because it is a human society comes from the outside.1 The state provides for this canon law, which Dombois calls additive law, by providing for juridical regulations of Church-state relationships. Part of this canon law will be the civil corporation law applied to the corporation “Church” which does leave some self-regulation to the members of the Church. The first and most important
1 That the order actually came from the outside, was clearly the case in the German Empire until the end of the First World War. Cf. Chapter 1, note 4.
objection to this positivism comes from the fact that the justified Christian does not precede the Church and that the Church is not a free association of Christians but an essential part of the process of justification.2
Another way of looking at canon law is to regard it as consecutive law. According to this view, on the one hand it is accepted that becoming a member of the Church is essential to being a christian, but on the other hand the members of the Church are free to shape canon law according to their insights into what the Church is, i.e. according to their concept of Church. The existence of the Church is placed before her actions, so that canon law is not connected with the actions of the Church.3
Dombois sees canon law as constitutive law. Canon law is part of the institutional actions that both justify the Christian and constitute the church. Canon law follows from the essential actions, the opus proprium of the Church, and it is therefore part of the Church’s essence.4 “The dimension of law is by institution part of the Church so that it cannot be imagined to be absent.”5
2 I:9-10; 83 nt. 12; 22-31; 52.
3 I:30-38; 53; 60.
4 I:873; 880; 888; III:113.
5 “Die Dimension des Rechts ist der Kirche eingestiftet, so dass sie aus ihr nicht weggedacht werden kann.” (I:13)
II. Canon Law and Grace.
The essential actions in the Church are the realization of grace (geschehende Gnade). Grace is the covenant between God and man by which community between God and man is created. God’s claim is that man allow himself to be given grace. The acceptance of grace includes: the acknowledgment of God’s lordship and of one’s being a sinner in need of grace, and the acceptance of Christ’s self-giving in death instead of man. Because of God’s incarnation in Jesus Christ, it is now possible that, by virtue of Christ’s mandate and representing Him, one human being can influence the relationship with God of another human being through preaching and sacrament. Not everything is done by the one sacrifice of Christ; his work has to be completed. Through the service of the Church, God’s actions of grace in liturgy in the broad sense can reach other people. The jurisdictional structure of grace is that of institution, namely of institution into community with God as well as into the Church. Community with God is not an individual affair but takes place within the community of the Church. The institutional actions of the Church are sacraments and preaching.6
Canon law is the law that governs the legitimacy of these institutional actions of the Church. As such it is
6 I:90-91; 94-95; 97-102; 168-169; 211-216; 282-286; 893.
part of the process of grace. Dombois sums it up as follows:
Canon law is about the foundation and maintaining of spiritual existence, about new existence coram deo. It is the totality of (juridical) processes in which God uses man to make His law of grace that founds existence, become effective in the world. ... This positive determination of the existence of human beings through law is grace. But again canon law is not about grace, but about the recommended giving of grace: it does not treat of the condition of the Christian, but of the Christian that is to be instituted; it treats of the building up of the body of Christ, of the oikodomê.7
He says elsewhere:
Canon law is about the way in which a Christian becomes a Christian, the way in which the body of Christ can be built up as a contrast to the world. ... Canon law is not at all interested in the individual existence of human beings, but in the task and mandate by virtue of which human beings can serve God in building up the Church.8
7 “Das Kirchenrecht handelt von der Begründung und Erhaltung geistlicher Existenz, einer neuen Existenz coram deo. Es ist der Inbegriff der (Rechts-)Vorgänge, in denen sich Gott der Menschen bedient, um sein existenzbegründendes Gnadenrecht inmitten der Welt wirksam werden zu lassen. ... Diese positive Existenzbestimmung des Menschen im Recht ist die Gnade. Aber wiederum handelt das Kirchenrecht nicht von der Gnade, sondern von der anbefohlenen Begnadigung: es handelt nicht vom Stand des Christen, sondern von dem zu instituierenden Christen; von der Auferbauung des Leibes Christi, von der oikodomê.” (I:80-81)
8 “Im Kirchenrecht geht es aber darum, wie der Christ überhaupt zum Christen wird, wie der Leib Christi als solcher im Gegensatz zur Welt auferbaut wird. ... Das Kirchenrecht interessiert sich überhaupt nicht für die Individualexistenz des Menschen, sondern um den Auftrag und die Vollmacht allein, vermöge deren Menschen Gott zur Auferbauung der Kirche dienstbar werden.” (I:78-79)
Dombois thus emphasizes the process character and the institutional character of grace and consequently of canon law. Canon law governs the way Christ’s mandate to the Church to hand down justifying grace by incorporation into her community takes place; therefore it has the structure of law of grace although the subjects of this process are quite different from those in civil law.9
Canon law is first and foremost law of grace, concerned as it is with the status of the members of the Church. One of the consequences of being law of grace is that there is no other way to enforce it than to change the status of persons, e.g. excommunication. Of course law of grace is as much law as law of justice is.10 Yet canon law in many churches has developed into normative law, although it is often mitigated by the system of dispensations.11
The juridical dimension of relationships between two parties always exists in the fact that they have effects on third parties (Drittwirkung). These third parties play a role in the coming into existence of these relationship as juridical ones.12 The same is true for the relationship between God and a human being. “What happens between God
9 I:14; 50; 80-81; 108; 206; 893; 922-924; 976-977.
10 Cf. Chapter 2, Paragraph I.
11 I:216-218; 874-884; 892; 995-996.
12 Cf. Chapter 2, Paragraph I.
and the faithful grounds at the same time a relationship to the neighbor.”13 The difference between canon law and civil law is the following:
Canon law has another point of view than civil law. Canon law is not concerned with the justification of human claims against human beings: it is concerned with the claim of God alone and exclusively — and only on the basis of that claim with juridical relationships between human beings. It is about what has to be done, according to God’s claim and as God’s claim, necessarily by human beings whom He uses for this purpose.14
The fact that canon law is law of grace and rules institutions means that it creates juridical relationships between the people that are instituted. These juridical relationships can be expressed in terms of claim and acknowledgment.15
13 “Was zwischen Gott und dem Glaubenden geschieht, begründet zugleich ein Verhältnis zum Nächsten.” (I:94)
14 “Das Kirchenrecht hat eine andere Blickrichtung als das weltliche Recht. Hier geht es nicht um die Rechtfertigung menschlicher Ansprüche gegenüber Menschen: hier geht es um den Anspruch Gottes ganz allein und mit voller Ausschliesslichkeit — und erst auf der Grundlage dessen um Rechtsbeziehungen zwischen Menschen. Es handelt sich um das, was nach Gottes Anspruch und als Gottes Anspruch zu geschehen hat, notwendig durch Menschen, deren er sich hierzu bedient.” (I:211)
15 I:91-93; 149; 771; 866-868. It is unfortunate that Dombois concentrates so much on the institutional aspect of canon law that he does not elaborate on this aspect of his theory which could give more insight into what ecumenical canon law could have to say about the concrete structures of the Church and the individual confessional churches.
III. Canon Law as Liturgical and Confessing Law.
One of the central ideas of Dombois’ theology of canon law is that “the law of the Church is identical with the process that constitutes her.”16 This identity means that one has to study the opus proprium of the Church to discover her law. The first forms of this action are those of traditio, i.e. the process of God’s self-giving to man, and receptio, i.e. the process of accepting this gift. Traditio takes place through human beings as mandated by God Himself through preaching and sacraments, which both belong together. The preaching and the sacraments have to be accepted, which receptio takes place through liturgy and profession of faith. Therefore, canon law which is part of the constitutive opus proprium of the Church, can be called liturgical and confessing law (liturgisches und bekennendes Recht).17 “Canon law is liturgy of which the legitimacy is checked.”18 For all of canon law it is true that it is developed from liturgy in
16 “Das Recht der Kirche ist identisch mit der sie konstituierenden Vollzüge.” (I:35)
17 Dombois takes this idea from Karl Barth who first used the terms. Dombois seems to be inspired by his thoughts but, of course, works it out in his own way (I:40-43). Because he often uses the word liturgy in a broad sense, including preaching and profession of faith, he also uses the word liturgical law to indicate the entire canon law, both liturgical and confessing law.
18 “Kirchenrecht ist auf ihre Legitimität geprüfte Liturgie.” (I:52)
the broad sense:
The formal principle of every Church order and all canon law is the commanded liturgical action. Its material principle is the always different understanding of this commandment. Every historical form of canon law can be reduced to a certain understanding of liturgy; changes in canon law reflect changes in liturgy. ... The factual history of the Church is the history of her liturgy.19
Thus canon law is much more than liturgical law that regulates the proper performance of liturgical actions. Canon law gives its order to the Church starting from liturgy; it can be developed from analysis of liturgy; and it gives order to the liturgy itself.20
In both preaching and the sacraments a jurisdictional element can be pointed out. Jurisdictional decisions settle juridical questions concerning whether a spiritual action should take place or not, i.e. whether to preach, to adapt the profession of faith to dogmatic questions, to administer the sacraments, to perform certain actions of office, to appoint to an office, to install in office and
19 “Das Formalprinzip aller Kirchenordnung und alles Kirchenrechtes ist das gebotene gottesdienstliche Handeln. Ihr Materialprinzip ist das jeweils unterschiedliche Verständnis dieses Auftrages. Jede geschichtliche Kirchenrechtsgestaltung lässt sich au ein bestimmtes Gottesdienstverhältnis zurückführen; Wandlungen des Kirchenrechts zeigen Wandlungen des Gottesdienstes auf. ... Die Realgeschichte der Kirche ist die Geschichte ihres Gottesdienstes.” (I:998-999)
20 This very important part of Dombois’ theory is mentioned in many different places throughout his work but especially in the first volume: I:35, 40-49; 51-53; 60-61; 77-79; 280-281; 354-355, note 8; 682; 694; 696; 811-831; II:219; III:274, nt. 11.
to remove from office. The jurisdictional decisions being dependent on the discernment of the working of the Holy Spirit, are not predictable according to unbreakable laws of normative law; they belong to canon law which is law of grace. Canon law has to indicate who has jurisdiction, who can make binding decisions, or else the Church would not be able to perform her opus proprium. The constitution of the Church that canon law provides indicates the structure of competencies. Thus liturgical and confessing law are connected in the one office that unites ordination and jurisdiction in itself. The official minister makes the necessary jurisdictional decision about both sacraments and profession of faith. Canon law therefore could be called the law of the pastoral office, the office of jurisdictional leadership.21
21 I:689-690; 755; 761; 836-844; 846-853; 861-864; III: 117-119; 331; 412-413.