The study of canon law has to include critical reflection on canon law in general and on the canon law of a certain christian church in particular. For the purpose of such critical reflection several questions must be asked. An obvious one is the question concerning the just and equitable content of the canon law that concretely governs the christian life of the members of a concrete church. However, before that question can be answered, more fundamental ones arise: why is there canon law in the first place? and what kind of a law is canon law?
Reflections upon the latter questions have produced very varied answers in the past two centuries. One extreme position sees canon law as a betrayal of the original Gospel message and as a man-made instrument taking the place of the direct governance of the christian community by the Holy Spirit. Others, less extreme, consider it a necessary evil functioning within the ecclesiastical community — just as civil law functions within society — for the purpose of keeping order amongst its sinful members. Still others think that it belongs among the essential theological aspects of the Church: she
does not need law because she is like other human societies, but rather she needs a different kind of law precisely because she is fundamentally different from other societies. Finally, a second extreme position makes canon law into a concretization of theology, thus downplaying its independent juridical character.
Those who hold the third position, which sees canon law as an essental theological aspect of the Church, often try to justify its existence and analyze its character by indicating that canon law finds its foundation in the sacraments of the Church, of better: in the fact that the Church is the sacrament of God’s salvation for the world. We can find an example of this theory of sacramental foundation of canon law in the writing of Hans Dombois. Unfortunately these writing have not been well received, due to their unusual combining of juridical theory with theological reflection. In English speaking countries, they have scarcely been read.
Hans Dombois has written a large number of works.1 His main publication, “Das Recht der Gnade” (“Law of Grace”), consists of three volumes, penned during a periode of more
1 In a recently published bibliography we count 16 books under his own name, 11 coedited books, 166 articles, and 34 articles in lexica. Cf. S. Riese, “Bibliographie Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):556-568.
than two decades.2 In this thesis I analyze these three volumes and offer a systematic presentation of Dombois’ personal theology of law that is found in them. By concentrating on Dombois’ theology of law, I will not touch on many other aspects of this very rich compilation of analyses, thoughts and theories. In general, my purpose is no more than a systematic presentation of Dombois’ own thought. Only on very few occasions, trying to draw attention to pivotal aspects of his reasoning, will I raise a question or make some critique; when I do so, I wish to indicate where a further development of Dombois’ thinking is possible; and I will do so only in footnotes, so that the main text follows Dombois’ thinking very closely. The footnotes, which indicate the particular parts of the work that bear upon a certain issue, and which often refer to passages in more than one of the volumes, demonstrate that Dombois remained consistent in his thinking throughout the work: only on the level of terminology are there some inconsistencies which I point out where these are of significance.
In the introduction, which follows hereafter, I give further information on Dombois himself that should prove helpful for an understanding of the themes that he
2 Hans Dombois, Das Recht der Gnade. Oekumenisches Kirchenrecht, 3 vols. Witten/Bielefeld: Luther-Verlag 1961-1983. I will cite this work by indicating the volume number in roman numerals and the page numbers in arabic numerals.
particularly emphasizes in his thinking. Furthermore I try to give some insight into the method that he uses in his analyses.
To be able to follow Dombois’ theology of law, I first have to present in some detail a few juridical concepts which he uses; I do so in the second Chapter. Some of Dombois’ juridical concepts are quite different from the ones we are used to, so that caution is necessary. This is apparent when he introduces two different types of law, law of grace and law of justice. We are, through our legal systems, very familiar with the latter, which is basically a system of rules that indicate the rights and duties of the members of the legal community. The former, however, is closer to what canon law is all about, namely a system of interrelated juridical statuses that indicate the juridical relationships between the members of the community. Dombois’ concept of personal institution, to be understood as the process — and not the result of that process — of granting people their respective statuses within the community, is another peculiar redefinition of an existing concept. I present this theoretical background in the second chapter.
The third chapter is dedicated to the general theological viewpoints that are fundamental to Dombois’ theology of law. He embraces the theological insight that salvation is not just a matter of the individual human
being receiving God’s grace. Human beings are necessarily social beings so that salvation, if it is to have meaning for human beings, has to have a social dimension. This social dimension is to be found in the fact that salvation has to take place within the ecclesiastical community. In the actions of the Church, in which she expresses herself as God’s instrument of grace for concrete human beings, this social dimension must be present. The actions of the Church are first and foremost the administration of the sacrament, the preaching of the Word of God and the profession of faith.
These actions of the Church communicate grace, and communicating grace means granting a person a certain status within the ecclesiastical community. Dombois wants to find out how exactly this theological reality of the communication of grace through instituting actions of the Church takes place. And then he applies his insight that analysis of the juridical concept of grace and reflecting upon what it means to grant someone a status in a juridical way are helpful in understanding the theological reality of grace and the Church’s instituting actions also. In the fourth chapter this juridical rethinking of theological categories is presented. The communal ecclesiastical aspect of grace shows itself to be present in all the actions of the Church in which she manifests herself as mediatrix of grace.
The juridical interpretation of the actions of the Church not only helps one to understand them better; it also indicates that they have an inherent juridical structure. This juridical structure brings with it the fact that relationships between members of the Church have to be formulated in juridical terms. In doing so it shows to me more law of grace than law of justice that is the appropriate and typical form of law for the Church. And this is what Dombois means by canon law. The most important juridical aspect of the actions of the Church will turn out to be the jurisdictional one: every ecclesial action presupposes a decision made by an official minister as representative of the Church. Canon law will have to provide an answer to the questions of competency that will necessarily be raised in every Christian church. A further elaboration of the way in which canon law is grounded in the actions of the Church is the theme of the last chapter.