Religious law

Canon law is the law itself set of religious communities. It regulates the legal relations of religion members among themselves.

Must be distinguished from the ecclesiastical law. This is in contrast to the church right around - from the perspective of the religious community here - foreign regulatory law and governs the legal relationship of religion to the state. Accordingly, limited state church law contrary to the wording not to Churches, but extends to all religious and philosophical communities within the scope of the respective state church law.

Both canon law as the state church law include state church treaties ( concordats and church contracts) or analogous agreements with other religious communities.

  • 2.1 Germany

The nature and significance

The western church canon law goes back to scholastic traditions (especially Gratian and Aquinas ). Historically, has exercised a role model for state law, the Roman Catholic law for many years. Numerous institutes (eg the dispensation ) were borrowed from him, studying " both rights " ( the translation of legal doctorate: .. Dr. utr [ iusque ] iur [is ] ) was for centuries a matter of course.

The great importance that had the canon law for a long time due primarily to the fact that until modern times, the personality principle in the jurisprudence was predominant and was only gradually replaced by the territorial principle. While according to the principle of territoriality, the law of the place is authentic, it is judged in the principle of personality under the law of the corporation in which a person is a member. Thus, the principle of personality is different, for example, between citizens and non-citizens residing in the place. Accordingly, subject to members of the clergy automatically Church law, a lawyer must therefore have knowledge of canon law as soon as it had to do with legal cases in which even members of the clergy could be involved, which was often the case. Only with the general enforcement of the territorial principle accounted for this need, " both right " to dominate in everyday legal issues.

Controversial is the right quality of canon law. The coined by Johannes Heckel dualistic canon law doctrine holds ecclesiastical and secular law for essentially different. The most prevailing monistic canon law doctrine, which was represented in particular by Hans Dombois, on the other hand does not see such a difference, but in both cases, binding standards with validity claim. In practice, this rather philosophical issue does not matter.

Importance for the Roman Catholic Church

The Roman Catholic Church legitimized itself as an institution in their traditional self- understanding of the apostolic succession, so the continuity up to Peter as the first pope and bishop of Rome: " You are Peter, and upon this rock I will build my church " (Mt 16, 18). This is clearly reminiscent of a legal transfer facts, such as the granting of a ( sub) power of attorney. The Church's identity is thus constitutive of the Roman Catholic Church, especially legal continuity, canon law for them. The question of the relationship of the institution "church" to the Church as " communion of saints " within the meaning of the third article of faith, the "Body of Christ on earth " ( ecclesia invisibilis ) therefore arises for them only in very attenuated form. She knows not only man-made, but also directly binding, immutable divine right ( divine law ).

Even though the Second Vatican Council considered the Church as the People of God in which therefore a common priesthood of all believers holds sway, under which there is a fundamental equality: all have the ministry of preaching, sanctifying and part ( communio fidelium ). Within the Christian faithful but support special line authority ( pope and bishops ) are still distinguished, whose legitimacy follows from the program group of the Twelve with Peter at the head (Communio hierarchica, see above). This hierarchical priesthood differs according to the common not in degree but in essence: there is no increase of the joint. Both communio fidelium and communion hierarchica are related to each other and practice the one mission of the church. Because this ecclesial communion is organic and synodal structured reality that also requires a legal form, the canon law is not only theologically justified even after the Council, but also necessary.

Canon law is the law of the church today the Roman Catholic Church of the Latin rite and the Eastern Catholic Churches. It governs the internal affairs of the Church community and provides for many areas before its own jurisdiction. Its name is derived from Greek / Latin "canon " ( " guide "). The individual standard complexes in the Code 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 Juris Canonici, which remained the authoritative Code of the Roman Catholic Church until 1917. In 1917 for the Latin Church for the first time the revised Code of Canon Law, which was completely redesigned in 1983 under the influence of the 2nd Vatican Council. For the Eastern Catholic Churches the Codex Canonum Ecclesiarum Orientalium was adopted in 1990.

The right of the Catholic Church drove the development of the German procedural law, especially the criminal trial, greatly advanced. Even the law of obligations is ( " contracts must be respected " ), for example, a native of canon law principle pacta sunt servanda been significantly affected, as this allows the strict formality of Roman law could be overcome. In the marriage law, it limited the relatives marriage and established the mutual marital fiduciary duty. The canon law was in communicating the moral-theological concept of punishment to the secular criminal law of central importance.

Importance for the Protestant churches

The Protestant churches in Germany have broken with the reformation of the legal continuity of the Catholic Church law and a private, positive law on the basis of confessions (and also the sovereign church government ) created: the so-called church orders. Since they have no separation between priests and laity ( " priesthood of all believers "), even at each foundation for the Apostolic Succession lacks appropriate legitimacy.

From this situation, the compulsion to be able to understand as yet ( worldwide, all Christians comprehensive ) church was built. The foundations laid the Confessio Augustana (CA ) and Article 7 thereof, as the " assembly of all believers in which the gospel is purely preached and the holy sacraments are administered according to the Gospel " means "church." Thus the Reformation view rejects the notion of community in Acts 2:42: " And they continued steadfastly in the apostles' doctrine and fellowship, and in breaking of bread, and in prayers. "

The canon law comes next to this content specific concept of the Church ( Bible - Gathering - breaking of bread - Pray ) one of the Catholic Church comparable importance therefore not to be: "(...) it is not necessary for the true unity of the Christian church that the same everywhere, by the people ceremonies used (Art. 7 CA ) are complied with. "

This raises the evangelical church but the question of the ratio of legally existing church to " spiritual" church. Depending on the understanding of the church, the existence of canon law was in the Protestant church even completely denied ( Rudolph Sohm: " Canon law is related to the nature of the Church in conflict. "). This is based on the underlying concept of law can ever be set only by the state. This view gave the church structures course award entirely from government authority.

This view was to the effect overcome even in the experience of the church struggle of the Third Reich that the need was recognized by the state independent church orders ( Barmen Declaration ) - the Church as communion, it could just not be true no matter who drew their legal structures ( no. 3: " We reject the false doctrine that the Church should shape the (...) left to order to its own pleasure or to changes in prevailing ideological and political convictions. "; No. 4: "We reject the false doctrine, as though and the church should be giving special, equipped with rule powers leader and give apart from this ministry. "). A kirchenlegitimierende significance of the canon law in the Protestant church but will not be attained.

The Canon Law of the Eastern Churches

In the Eastern Churches the right idea overall plays a much smaller role than in the Western churches. The stronger state structures in their areas made ​​the development of its own legislative, and judicial tradition less necessary. The local church law essentially consists of a small number of fully formulated rules and a large number of habits that are usually handled very flexible, in some countries and times flexible to actual anarchy, to the detriment of legal certainty and orderly conditions.



As a consequence of religious freedom and the separation of church and state in Germany the right of religious communities to regulate internal affairs, enshrined in the Constitution, the Basic Law ( Article 140 of the Basic Law in conjunction with Article 137 Para 3 WRV - church self-determination ). Has the religious group the status of a public corporation ( corporate status ), so their internal church law Public law is. Here, the German Federal Constitutional Court assumes in the case law, the legislative power of the religious communities was not derived from the State or be awarded, but original.

Sources of law

The right of the Roman Catholic Church (or actually the Latin Church ), canon law, distinguishes divine ( divine law, set by divine authority standards) and purely ecclesiastical law ( ius humanum jus mere ecclesiasticum adopted by church authorities or sanctioned affirmative ). Within the divine law is again a distinction between divine law positivum (contained in Revelation, especially the hierarchical constitution of the Church concerning ) and divine law naturale ( from human nature without revelation understandable ). Legal sources of ecclesiastical law are legislation and custom. Some legal rates apply total church (universal), others are only particularist law. There is a comprehensive law book, written in Latin, the Code of Canon Law of 1983 ( CIC/1983 ). Before that was the Code of Canon Law of 1917 ( CIC/1917 ), also known as pio - Benedictine Code. We also talk about altkodikarischen law as opposed to CIC/1983, the kodikarisches law is called. The Uniate Eastern Churches with Rome its own, different from the Latin ( Roman ) Church canon Codex Canonum Ecclesiarum Orientalium. In the 8th century, the Irish church developed its own canon law collection, the spread in copies over all of Western Europe.

The Protestant church law is in contrast decentralized lack of uniform institutions. The law is limited to the individual national churches ( with out limited development of customary law ). In Germany, the EKD has skills for settlement directly applicable law in only a few areas. Enhances the country churches communicate in the confessional frets ( TOB and VELKD ) on common law-making, for example in the parish service law. The church constitutions and laws and regulations based on it yet differ to a considerable extent. In the Evangelical Church A.u.H.B. in Austria it is called canon law and church order.

In the Orthodox Church are the Canons, that is, the decisions of the Ecumenical Councils as well as some expressions of the Church Fathers, the core of the ecclesiastical law. Orthodox bishops may depart from them but when the " wise housekeeping in the house of God " ( Ökonomia ) so requests in individual cases.

Regulatory areas

Canon law regulates initially internal structure and organization of the religious community ( membership, congregations, governing bodies ), so their constitution. On the basis of ecclesiastical laws and regulations may be promulgated dealing with various topics such as liturgy and worship sequence ( " liturgy " ), Kasualien ( " rules of life" ), asset management and tax, bells, organ and construction, employment law and more.

A peculiarity of the Roman Catholic Church law is the marriage law, including religious marriage courts, which does not know the evangelical church. By contrast, most Protestant churches have their own administrative and disciplinary jurisdiction.

For a large number of workers in diakonia and Caritas especially the Church of labor is of great practical relevance ( Third Way ).