The opposite term to church law is secular law , especially the respective state law. State law can also refer to the church (s) ( state church law ) . Canon law and state church law differ in the ground of validity (authority) : law based on the original self-legislative competence of a church or law based on state sovereignty.
Both church law and state church law include state church treaties (concordats or church treaties) or analogous agreements with other religious communities: "State church law between church and state applies in the church by virtue of church authority and in the state by virtue of state authority."
Essence and meaning
The western church law goes back to scholastic traditions (especially Gratian and also Thomas Aquinas ). Historically, Roman Catholic law has served as a model for state law for many years. Numerous institutes (e.g. the dispensary ) were borrowed from it, the study of "both rights" (as the translation of the legal doctorate: Dr. utr [iusque]. Iur [is]. ) Was a matter of course for centuries.
The great importance that canon law had for a long time is primarily based on the fact that until modern times the principle of personality was predominant in jurisprudence and was only gradually replaced by the territorial principle . While the local law is binding according to the principle of territoriality, the principle of personality is based on the law of the corporation of which a person is a member. The personality principle also differentiates, for example, between citizens and non-citizens resident in the area. Accordingly, members of the clergy were automatically subject to canon law, so a lawyer had to have knowledge of canon law as soon as he had to deal with legal cases in which members of the clergy could also be involved, which was often the case. It was only with the general implementation of the territorial principle that there was no longer any need to master “both rights” in everyday legal issues.
The legal quality of canon law is controversial. The dualistic doctrine of canon law coined by Johannes Heckel considers ecclesiastical and secular law to be essentially different. The prevailing monistic doctrine of canon law, represented in particular by Hans Dombois , sees no such difference, but in both cases sees binding norms with a claim to validity. In practice this legal philosophical issue does not play a role.
Significance for the Roman Catholic Church
The Roman Catholic Church legitimizes itself as an institution in its traditional self-image through apostolic succession , i.e. the continuity up to Peter as the first Pope and Bishop of Rome: "You are Peter, and on this rock I want to build my church" (Mt 16 , 18). This is clearly reminiscent of a legal transfer case, such as the granting of a (sub) power of attorney . The ecclesiastical identity is thus above all legal continuity for the Roman Catholic Church, and canon law is constitutive for it. The question of the relationship between the church as an institution and the church as a community of saints in the sense of the third article of faith, the mystical body of Christ ( ecclesia invisibilis , “invisible church”), is therefore only posed in a very weakened form. The church knows not only man-made, but also directly binding, unalterable divine law (ius divinum) . To deny the justification of canon law by referring to the Holy Scriptures seems self-contradictory from a Catholic point of view: what belongs to the canon of Holy Scripture is defined by the Church on the basis of its legal authority to canonize.
The Second Vatican Council also regards the Church as the people of God , in which a common priesthood rules for all believers , among whom there is a fundamental equality: all participate in the service of preaching, sanctification and leadership (communio fidelium) . Within the Christian faithful, however, a distinction is made between holders of special authority to lead ( Pope and Bishops ), whose legitimation follows from the mission of the circle of twelve with Peter at the head (Communio hierarchica) . This communio hierarchica differs from the common priesthood not in degree but in essence: it is not an enhancement of the common. Both communio fidelium and communio hierarchica are related to each other and exercise one mission of the Church. Because this ecclesiastical communion is an organically and synodally structured reality that also requires a legal form, canon law after the Council is not only justified theologically, but also necessary.
Canon law is the canon law of the Roman Catholic Church of the Latin Rite and of the Eastern Catholic Churches . It regulates the internal affairs of the church community and provides separate jurisdiction for many areas. Its name is derived from the Greek or Latin canon ("guideline"). The individual norm complexes in the Codex of Canon Law are called canons .
The collection and codification of canon law began in the Middle Ages and led to the collection of the Corpus Iuris Canonici , which remained the authoritative code of law of the Roman Catholic Church. In 1917 the revised Codex Iuris Canonici (CIC) appeared for the first time for the Latin Church , which was completely revised in 1983 under the influence of the Second Vatican Council. The Codex Canonum Ecclesiarum Orientalium was issued for the Eastern Catholic Churches in 1990 .
The law of the Catholic Church strongly promoted the development of German procedural law, namely criminal proceedings. The law of obligations has also been significantly influenced , for example, by the principle of pacta sunt servanda (“contracts must be kept”), which comes from canon law , because it was able to overcome the strict formality of Roman law. In the marriage law of the Catholic Church it restricted the marriage between relatives and established the mutual conjugal duty of loyalty. The canon law had in communicating the moral theological concept of punishment to the secular criminal law is of central importance.
Significance for the Protestant churches
With the Reformation, the Protestant churches in Germany broke away from the legal continuity of Catholic canon law and created their own positive law on the basis of the confessional documents (and also the sovereign church regiment ): the so-called church ordinances . Since they do not know of any separation between priests and lay people (“ priesthood of all believers ”), there is also no basis for a legitimation corresponding to the apostolic succession.
From this situation arose the compulsion to be able to understand oneself as a (worldwide, all Christians comprehensive) church. The foundations were laid by the Confessio Augustana (CA) and its Art. 7, which understands the "Church" as an "assembly of all believers at whom the Gospel is preached in pure form and the Holy Sacraments are administered according to the Gospel". The Reformation view is based on the concept of the community in Acts 2.42: "But they remained constant in the teaching of the apostles and in the community and in breaking bread and in prayer."
In addition to this concept of the Church (Bible - getting together - breaking bread - praying), church law does not have a meaning comparable to that of the Catholic Church: “(...) It is not necessary for the true unity of the Christian Church that the same people everywhere used ceremonies are observed ”(Art. 7 CA).
This raises the question of the relationship between the legally existing church and the “spiritual” church for the Protestant church. Depending on the respective understanding of the church, the existence of canon law was even completely denied in the Protestant church ( Rudolph Sohm : "Canon law is in contradiction to the nature of the church" (1892)). This is based on the idea that law can only be established by the state. This view, of course, left the church structures completely open to the state. Nevertheless, in 1649 Benedikt Carpzov the Younger created a codified canon law, the first of any Protestant church.
This view was then overcome in the experience of the church struggle of the Third Reich to the extent that the need for church orders independent of the state was recognized ( Barmer Theological Declaration ) - the church as a community could not care less who directed its legal structures (No. 3: “We reject the wrong doctrine, as if the church could leave the form (...) of its order to its discretion or to the change of the prevailing ideological and political conviction.” No. 4: “We reject the wrong doctrine as if it could and apart from this service, may the church be given and be given special leaders with authority over power. "). As a result, canon law in the Protestant Church has not achieved a church-legitimizing significance.
The canon law of the Eastern Churches
In the Eastern Churches the legal concept plays a much smaller role overall than in the Western Churches. The stronger state structures in their areas made the development of their own legislative and judicial tradition less necessary. The church law there consists essentially of a small number of formulated rules and a large number of habits, which are usually handled very flexibly, in some countries and times flexible up to factual anarchy , at the expense of legal certainty and orderly conditions.
Roman Catholic Church
Divine and human right
The Roman Catholic Church distinguishes between divine and ecclesiastical (human) law. The divine right is again differentiated into the right of revelation (ius divinum positivum) in the sense of natural law contained in the revelation - especially concerning the hierarchical church constitution - and without revelation that can be deduced solely from human nature (ius divinum naturale) .
For the Latin Church (without claim to completeness) only individual canons speak of a regulation based on divine law.
Purely ecclesiastical law is also called ius humanum or ius mere ecclesiasticum (issued by ecclesiastical authorities or sanctioned with approval).
Central formal sources of law
The Roman Catholic Church knows two different legal circles, each with its own code of law:
- the Codex Iuris Canonici of 1983 (CIC 1983). He refers to secular law in 53 canons.
Previously, the Codex Iuris Canonici from 1917 (CIC 1917), also called the Pio-Benedictine Codex, was valid . One also speaks of Old Codicarian law in contrast to the CIC 1983, which is called Codicarian law .
For the Roman Catholic Church as a whole, i.e. for both legal circles, the Apostolic Constitution Pastor Bonus applies .
Other formal sources
Ecclesiastical legislators are the Pope , the Bishops' Conference and the diocesan bishops . The law issued by them distinguishes between laws (leges) , such as general decrees to be dealt with (decreta generalia) , statutes of ecclesiastical foundations and constitutions such as the rules of the order . General implementing decrees (decreta generalia exsecutoria) , administrative ordinances (instructiones) and rules of procedure (ordines) have no legal status.
Evangelical (regional) churches
In contrast, Protestant church law is more decentralized due to the lack of uniform institutions. Legislation is limited to the individual regional churches (with a limited development of customary law). In Germany, the EKD only has competencies to establish directly applicable law in a few areas. The regional churches in the confessional leagues ( UEK and VELKD ) are increasingly agreeing on common legislation, for example in parish law. The church constitutions and the laws and ordinances based on them, however, differ to a considerable extent. The Evangelical Church AuHB in Austria speaks of canon law and church order .
In the Orthodox Church , the canons , that is, the decisions of the Ecumenical Councils and some statements by the Church Fathers , form the core of ecclesiastical law. Orthodox bishops may deviate from this, however, if the “wise housekeeping in God's house” ( Ökonomia ) demands this in individual cases .
Areas of regulation
Canon law regulates the internal structure and organization of the religious community (membership, parishes , governing bodies), i.e. their constitution. On this basis, ecclesiastical laws and ordinances can be issued that deal with a wide variety of topics, for example liturgy and the course of worship (“agende”), casualia (“ life rules ”), asset management and taxes, bells, organs and construction, service law and more .
A special feature of Roman Catholic canon law is marriage law including ecclesiastical marriage courts, which the Protestant Church does not know. Most Protestant churches, on the other hand, have their own administrative and disciplinary jurisdiction.
- Statuta ecclesiae antiqua
- Collectio Canonum Hibernensis
- Codex Iuris Canonici , Canon Law
- Labor law of the churches , employee representation in the church
- Canon Law Institute of the Evangelical Church in Germany
- Ecclesiastical court
- Church matters since 1946
- Stephan Haering , Heribert Schmitz (Hrsg.): Lexicon of Canon Law. Herder, Freiburg (Breisgau) a. a. 2004, ISBN 3-451-28522-3 (updated excerpt from the LThK , 3rd edition, so more Catholic).
- Ilona Riedel-Spangenberger , Axel Freiherr von Campenhausen , Reinhold Sebott: Lexicon for church and state church law. 3 volumes. Paderborn 2000-2004, ISBN 3-506-75140-9 .
- Heinrich de Wall , Stefan Muckel : Canon law. A study book. 5th edition. CH Beck, Munich, 2017, ISBN 978-3-406-66168-6 (1st part: Subject matter and history of canon law; 2nd part: State church law; 3rd part: Catholic church law; 4th part. Protestant church law).
Catholic canon law
- Joseph Listl, Heribert Schmitz, H. Müller (eds.): Handbook of Catholic Church Law. 2. fundamentally rework. Edition. Pustet, Regensburg 1999, ISBN 3-7917-1664-6 ( content ).
- Richard Puza : Catholic canon law (= university paperbacks 1395). 2nd revised edition. Müller, Heidelberg et al. 1993, ISBN 3-8252-1395-1 .
- Ulrich Rhode : Canon Law. Kohlhammer, Stuttgart 2015 (textbooks theology; vol. 24), ISBN 978-3-17-026227-0 , 293 pp.
Protestant canon law
- Hans Ulrich Anke , Heinrich de Wall, Hans Michael Heinig (ed.): Handbook of Protestant Church Law . Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154606-8 .
- Martin Honecker : Evangelical Church Law. An introduction to the theological basics (= Bensheimer Hefte 109). Vandenhoeck & Ruprecht, Göttingen 2009, ISBN 978-3-525-87123-2 .
- Albert Stein : Evangelical Church Law. A textbook. 2nd revised edition. Luchterhand, Neuwied et al. 1985, ISBN 3-472-52516-9 .
State Church Law
- Peter Landau: Foundations and history of Protestant church law and state church law . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-149455-0 .
- Jörg Winter : State Church Law of the Federal Republic of Germany. An introduction with canon law digressions. Luchterhand, Neuwied et al. 2001, ISBN 3-472-04328-8 .
History of Canon Law
- Martin Heckel: Martin Luther's Reformation and the Law. The development of Luther's theology and its impact on the law under the framework conditions of the imperial reform and the formation of the territorial state in the struggle with Rome and the "enthusiasts" . Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154468-2 .
- Othmar Heggelbacher: History of early Christian canon law. Until the Council of Nicea in 325 . Universitätsverlag, Freiburg (Switzerland) 1974, ISBN 3-7278-0103-4 .
- Gerhard Rau (Ed.): On the history of church law (= The law of the church , Vol. 2). Gütersloher Verlagshaus, Gütersloh 1995, ISBN 3-579-02019-6 .
- Philipp Thull (ed.): 60 portraits from church law. Life and work of important canonists , St. Ottilien 2017, ISBN 978-3-8306-7824-3 .
- Comprehensive list of links on questions of canon law
- Information platform on church tax
- University of Friborg (Switzerland) , Institute for Religious Law: Legal Collection
Catholic canon law
- Codex Iuris Canonici online ( CIC / 1983 German and Latin, CCEO and CIC / 1917 Latin)
- CCEO online (multilingual)
- Canon law online (Ulrich Rhode)
- Ken Pennington : Medieval and Early Modern Jurists: A Bio-Bibliographical Listing , Catholic University of America 2011-2012.
- Hamburg : KABl. ( ; 1995– / online 2000–)
- Berlin : OJ. ( ; 1998– / online 2014–)
- Paderborn : KABl. ( ; 1930– / online 2006–)
- Cologne : OJ. ( ; 1852– / online 2005–)
- Freiburg : OJ. ( ; 1857-)
- Bamberg : OJ. ( ; 1878–)
- Munich-Freising : OJ. ( ; 1880–)
Austrian Bishops' Conference : OJ. ( ; 1984– / completely online)
- Salzburg : VBl. ( ; 1851– / online 2001–)
- Vienna : WDBl. ( ; 1863– / online 2005–)
- Austrian military diocese : OJ. ( ; 1989– / online 1990–)
- Swiss Bishops' Conference : SKZ ( ; 1832– / online 2013– and 1832 - 2017 )
- Vaduz : Vobiscum ( ; 1999–)
Protestant canon law
- Specialized information system for church law
- Evangelical Church in Germany : OJ. EKD ( , 1946– / online 1987– )
Union of Evangelical Churches : OJ. EKD
- Anhalt : OJ. ( , 1919 / 56– / online 2004–)
- Baden : GVBl. ( , 1861– / online 2000–)
- Berlin-Brandenburg-Silesian Upper Lusatia : KABl. ( ; 2004– / predecessor online 2000–)
- Bremen : GVM ( , 1925– / online 2001–)
- Hessen-Nassau : OJ. ( , 1934 / 47– / online 2004–)
- Kurhessen-Waldeck : KABl. ( , 1886– / online 2004–)
- Lippe : GVOBl. ( , 1916– / online 2007–)
- Central Germany : OJ. ( , 2005– / predecessor online 1996 / 2003–)
- Palatinate : OJ. ( , 1921– / online 2007–)
- Evangelical Reformed Church : GVBl. ( , 1884– / online 2001–)
- Rhineland : KABl. ( , 1860– / online 1990–)
- Westphalia : KABl. ( , 1859– / online 1989–)
United Evangelical Lutheran Church of Germany : OJ. VELKD ( , 1954– / online 2001–)
- Bavaria : OJ. ( , 1914–)
- Braunschweig : OJ. ( , 1887– / online 1994–)
- Hanover ( Lower Saxony ): KABl. ( , 1885– / online 2008–)
- Central Germany: OJ.
- Northern Germany : KABl. ( , 2012– / predecessor online 1919– )
- Saxony : OJ. ( , 1874– / online 2004–)
- Schaumburg-Lippe : KABl. ( , 1929– / online 2007–)
- Oldenburg : GVBl. ( , 1849– / online 2005–)
- Württemberg : OJ. ( , 1855– / online 2000–)
- Methodist Church in Germany: OJ. (1968– / online 2009–)
Federation of Swiss Protestant Churches : Legal matters and regulations
- Aargau : legal collection
- Appenzell : Laws
- Basel-Landschaft : Ecclesiastical collection of laws
- Basel-Stadt : collection of laws
- Bern-Jura-Solothurn : ecclesiastical collection of decrees (KES)
- Freiburg : right
- Église Protestante de Genève : Constitutions et réglements
- Église Évangélique Libre de Genève : Constitution
- Glarus : collection of laws
- Graubünden : collection of laws
- Lucerne : legal texts and decrees
- Neuchâtel : Legislation
- Nidwalden : Laws and Regulations
- Obwalden : Statute
- St. Gallen : decrees
- Schaffhausen : legal texts
- Schwyz : Constitution / Church rules / regulations
- Solothurn : Laws and ordinances
- Thurgau : Laws and ordinances
- Ticino :?
- Uri : Regulations
- Vaud : Documents officiels
- Valais : Church constitution and regulations
- Zug : laws and regulations
- Zurich : right
- Methodist Church in Switzerland :?
- Heinrich de Wall , Stefan Muckel: Church law. 5th edition. CH Beck, Munich 2017, ISBN 978-3-406-66168-6 , § 16 Rn. 1 fn. 3 with further references
- Winfried Aymans : Canon Law. In: Stephan Haering , Heribert Schmitz : Lexicon of Church Law. Herder, Freiburg i. Br. 2004, ISBN 3-451-28522-3 , Sp. 515.
- Ulrich Rhode : Church Law (= Study Books Theology; Vol. 24). Kohlhammer, Stuttgart 2015, ISBN 978-3-17-026227-0 , p. 33.
- Knud Fabricius: Kongeloven. Dens tilblivelse and plads i samtidens Natur- and different udvikling. En historisk undersøgelse . Copenhagen 1920 (reprographic reprint 1971), ISBN 87-7500-810-6 , p. 64, fn. 1.
- Cf. cc. 22 , 24, 98, 113, 129, 145, 199, 207 , 330, 375, 748 , 1008 , 1059, 1075, 1163, 1165, 1249, 1259 , 1290, 1299, 1315 , 1399, 1692
- Beate Paintner: The relationship between state and church law (2013), p. 17 ; Stephan Haering: Reception of Secular Law in Canon Law (1998). See cc. 22 , 98, 105, 110, 194, 197; 227 , 231, 285, 289, 362, 363, 364, 365, 377, 492, 660, 668, 694; 793 , 797, 799; 877 , 1041, 1059, 1062, 1071, 1094, 1105, 1152; 1268 , 1274, 1284, 1286, 1288, 1290, 1296, 1299; 1344 , 1394; 1405 , 1479, 1500, 1540, 1548, 1558, 1672, 1675, 1689, 1692, 1707, 1714, 1716.
- see Institute for Canon Law and Evangelical Church Order , Evangelical Theological Faculty (ETF) of the University of Vienna , TM: Projects: ETF