Divine right

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As a divine right ( latin divine law ) are legal standards referred to in the opinion of a legal system dominant religion on legislations of God or a divine entity are recyclable (about the Ten Commandments ) is therefore valid and irrevocable. Divine law belongs to the over-positive law ( natural law ) and has long been equated with it.

Legal philosophy

There were already ideas of an over-positive setting of norms in ancient Greece . Even then, particularly fundamental or state-supporting laws were defended with reference to their religious nature or their divine origin. In the Christian societies of the European Middle Ages , no distinction was made between natural law and divine law, since the validity of Christianity as the religious basis of the community was not in question. However, the question of a theoretical justification of legal norms in the medieval world of thought did not play a major role anyway, since the setting of law was basically understood as a personal act of grace by an authority (god or the prince ) that did not need justification. Only in the modern debate about the legitimation of law and the derivation of existing laws did the recourse to natural and divine law play an important role again. In the course of the Enlightenment and secularization , pure ius divinum arguments appeared increasingly questionable and natural law began to be detached from the religious-theological basis.

The natural law, and thus also the divine law, is contrasted with the positive law , i.e. the law established only by humans, which includes all those legal provisions that are enacted and changed from time to time according to the point of view of expediency with regard to the changing needs of human society can.

However, the areas could never be clearly delimited from one another. When it came to justifying traditional legal norms, competing legal justifications were quite possible in the legal-philosophical debate. Until the recent past, marriage and family law in particular (e.g. obstacles to marriage ) was regarded as a genuine area of ​​application of divine law . Today there is a conviction that the law is fundamentally changeable. In secular legal systems, religious norms are generally not based. The question of whether and to what extent a reference to God should or can be completely dispensed with, is answered differently today and was only recently a controversial topic in the discussion about the European constitution . According to the prevailing opinion , the appeal to God in the preamble of the German Basic Law is not to be understood as a theological constitutional component, but essentially as an appeal to natural law.

Judaism

The Halacha is the legal part of the tradition of Judaism . It aims at rules of conduct that affect the whole life of believers. The Halacha is laid down in the Mishnah , the centerpiece of the Talmud , the origin of which the Jewish tradition traces back to the word of God revealed to the mosque on Mount Sinai .

Christianity

Roman Catholic Church

Since the 11th century a distinction has been made not only between "secular" and canon law , but also within canon law between changeable and unchangeable legal clauses. The canonical law of the Roman Catholic Church also makes a strict distinction between ius divinum , divine law (cf. c. 22, 24 § 1, 98 § 1 CIC ), and ius mere ecclesiasticum , i.e. purely ecclesiastical (man-made) law. The law is regarded as ius divinum , which (according to magisterial interpretation) can be traced back directly to the will of God. It is considered to be given, timeless and overriding other church law. Accordingly, divine law cannot be changed or repealed by the ecclesiastical legislature. A dispensation is also only possible under purely ecclesiastical law.

The divine right ( ius divinum ) is subdivided (cf.e.g. c. 199 CIC) into:

  • positive divine right (ius divinum positivum) (right of disclosure)
  • natural divine right (ius divinum naturale) (also: ius naturale ), ( natural law ).

The right of disclosure can be taken directly from the disclosure . The only right of revelation in the narrower sense is the divine right, which is “only recognizable in faith” - and therefore can only oblige believers.

The norms of natural law are based on the divine order of creation and, according to the understanding of the Catholic Church, can be recognized with the means of reason, in particular from the inclinationes of human nature - and also apply to non-believers.

“Divine and human law form a uniform legal system.” Divine law takes precedence over human law. A distinction must be made between the divine ordinance and the attempt at legal regulation.

What is divine or just ecclesiastical law in detail is partly disputed. The CIC is reluctant. One can distinguish between positive, negative and controversial candidates:

positive candidates

Immutable legal facts that have been withdrawn from the will of the human legislature include:

controversial candidates
  • It is disputed whether women are excluded from the priesthood by virtue of divine right.
negative candidates
  • It is generally believed that priestly celibacy is not divine right.

Protestant churches

The Protestant church ordinances have no ius divinum . However, following Erik Wolf , the concept of so-called "biblical instructions" developed. By this one understands basic principles to be derived from the Bible, which "are not themselves legal clauses, but limiting and aligning instructions." Among other things, Wolf counts the "brotherhood" of believers, the diaconal mandate of the congregation, the baptismal order as a missionary mandate and the Communal act of the Lord's Supper .

Islam

The Sharia is the religiously legitimized legal system of Islam . The term fiqh denotes Islamic jurisprudence .

literature

  • Karl Rahner : About the term “Ius Divinum” in the Catholic understanding. In: Thomas Würtenberger , Werner Maihofer , Alexander Hollerbach (eds.): Existence and order. Festschrift for Erik Wolf on his 60th birthday. Klostermann, Frankfurt am Main 1962, pp. 62–86, (Also in: Karl Rahner: Schriften zur Theologie. Volume 5: Newer writings. Benziger, Einsiedeln et al. 1962, pp. 249–277).

Individual evidence

  1. ^ Ulrich Rhode : Canon Law. Kohlhammer, Stuttgart 2015 ( Study books Theology. Volume 24), ISBN 978-3-17-026227-0 , p. 16.
  2. ^ Ulrich Rhode: Canon Law. Kohlhammer, Stuttgart 2015 ( Study books Theology. Volume 24), ISBN 978-3-17-026227-0 , p. 16.
  3. ^ Heinrich de Wall , Stefan Muckel : Church law. 5th edition. CH Beck, Munich 2017, ISBN 978-3-406-66168-6 , § 16 Rn. 24
  4. ^ Heinrich de Wall, Stefan Muckel: Church law. 5th edition. CH Beck, Munich 2017, ISBN 978-3-406-66168-6 , § 16 Rn. 24
  5. ^ Heinrich de Wall, Stefan Muckel: Church law. 5th edition. CH Beck, Munich 2017, ISBN 978-3-406-66168-6 , § 16 Rn. 23
  6. ^ Heinrich de Wall, Stefan Muckel: Church law. 5th edition. CH Beck, Munich 2017, ISBN 978-3-406-66168-6 , § 16 Rn. 23
  7. ^ Heinrich de Wall, Stefan Muckel: Church law. 5th edition. CH Beck, Munich 2017, ISBN 978-3-406-66168-6 , § 16 Rn. 23
  8. ^ Heinrich de Wall, Stefan Muckel: Church law. 5th edition. CH Beck, Munich 2017, ISBN 978-3-406-66168-6 , § 16 Rn. 23