The Systematic Character of Canon Law

In the late eleventh, twelfth, and early thirteenth centuries there emerged -- indeed, there was consciously created, though not all at once but only gradually, and not out of whole cloth but rather by reconstituting and restructuring preexisting disparate elements -- a system of canon law, a jus canonicum (as it came to be called in the midtwelfth century), a corpus juris canonici (as it came to be called in the thirteenth century).

The analytical integration of canon law, that is, its explicit logical systematization, proceeded from a belief that underlying the multiplicity of legal rules and procedures was a set of basic legal principles, and that it was the task of jurists to identify those principles and to help shape the law so that it would conform to them. The jurists thought in principles. Out of the principles they built systems, which, like the theologians, they elaborated in books called summae, meaning both "highest" and "total."

It was believed, further, that the underlying legal principles had not only a logical aspect, being subject to reason, but also a moral aspect, being subject to conscience. Therefore, not only an analytical or logical systematization was required, which would strive for consistency in the law, but also a moral systematization, which would strive for equity. In addition, the principles underlying the law were believed to have what today would be called a political aspect: they were, on the one hand, the principles already implicit in the law, but they were also, on the other hand, a program, a standard by which to judge and correct and, if necessary, to eliminate particular existing laws.

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The logical, moral, and political aspects of basic legal principles were summarized in the concept of natural law. This was a substantially different concept from that held by the Greeks and the Romansn. The earlier natural law had been defined as the right of every man___________________________________________________________ as it was put in the

first title of Justinian's Digest____ to receive what was his due; natural law was justice, equity, what

was right; it was an ideal law, the law not of the state but of nature itself, to which the law of the state might or might not conform. It lacked the programmatic character of the natural law of the l ater European Romanists and canonists. For the canonists, natural law was primarily a standard to be held up to secular rulers by the church, and secondarily a standard by which to interpret and shape the law of the church as well. Natural law was not an ideal law standing outside the existing legal systems but rather the morality of the law itself standing within the existing legal systems. It was a kind of constitutional principle, or Grundgesetz, a "due process clause." It was because of the programmatic or political character of the law, represented particularly by that part of it that was called natural law, that thousands of young men went annually to the universities to study law __ as in the United States today __ in order to prepare

themselves for political careers. These were among the most intelligent and ambitious young men of Europe. They were taught the positive law and the techniques of applying it, but they were also taught the natural law, the law that was to be. The glosses had a political function.

What is called here the political aspect of the canon law, its principle of conscious development, of growth, of reform, was manifested concretely in the stream of legislation which proceeded from the papacy, and from church councils called by the papacy, from the late eleventh century on.

The combination of logical, moral, and political elements contributed to a systematization that was quite different from a merely doctrinal or dogmatic analysis of legal rules, however complex and however coherent. The canon law as a system was more than rules; it was a process, a dialectical process of adapting rules to new situations. This was inevitable if only because of the limits imposed upon its jurisdiction, and the consequent competition which it faced from the secular legal systems that coexisted with it.

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