Church and State (Canon Law)

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It has long been part of the study of canon law to explore the relationships between the Church and the diverse civil governments within whose territories the Church seeks to fulfill its mission. Treatises on the public law of the Church have traditionally been divided into ius publicum internum, the study of the internal constitution, structures, procedures, and power of the Church, and ius publicum externum, the study of the external relationships between the Church and the civil legal systems that the Church encounters throughout the world.

Ius publicum externum, or the canonical study of church-state relationships, is in turn divided into the theoretical study of the optimal relationship between ecclesial and civil society and the practical study of the de facto accommodation between the Church and the civil government in a particular nation. The theory underwent remarkable development during the Second Vatican Council and was given renewed expression in the Declaration on Religious Freedom. In many nations, the practical working out of relationships between Church and State takes the form of concordats entered into between the Holy See and individual civil governments that seek to protect, by mutual agreement, the interests of the Church and the state in matters of common concern, such as religious liberty, marriage, education, healthcare, ownership of property, public religious expression, appointment of ecclesiastical officials, and the punishment of certain crimes.

In the United States, where no formal concordat exists with any ecclesiastical authority, church-state relationships are worked out in federal and state legislatures and courts, notably in the Supreme Court of the United States. Input from the Church in the development of the law of church and state in the United States is through scholarly research and writing, effective influencing of legislation, expert witnesses in court cases to which the Church is a party, and the filing of amicus curiae (friendof-the-court) briefs in other relevant federal and state litigation.

Code of Canon Law. Relevant to working out church-state relationships in each nation are a number of canons in the 1983 Code of Canon Law that refer or pertain to civil law. Forty canons make explicit reference to civil law. The references vary from declarations of the Church's total independence from the civil law, to exhortations to follow the provisions of civil law so as not to occasion harm to the Church, to "canonization" of the civil law, where prescriptions of civil law are said to have the same effect at canon law as at civil law.

The most sweeping declaration of independence is in the area of property law where the Church claims the right to acquire, possess, administer, and dispose of temporal goods, in pursuit of ends proper to the Church, independently of civil power (c. 1254). A relic of an earlier age, and historically understandable in the light of centuries of struggle against secular rulers who unjustly deprived the Church of property, the claim continues to spawn occasional conflict. Pursuant to the claim, the Code of Canon Law contains 57 canons regulating church-related property (cc. 12541310) in general, and an additional section of canons regulating the property of religious institutes (cc. 634640). One particularly troublesome specification of the claim concerns last wills and testaments, where the Church claims the right to insist upon fulfillment of dispositions to the Church in wills that are civilly invalid for failure to fulfill required formalities (c. 1299). In recognition of modern realities, however, the fulfillment of civil law formalities in the making of wills is urged and, in the case of members of religious institutes, required (c. 668n1). The Church's claim to independence in property matters is further moderated by placing canonical obligations on administrators of church property to observe prescriptions of civil law (c. 1284n2), to see that ownership of ecclesiastical property is safeguarded through civilly valid methods (c. 1284n2), and to utilize civilly effective means of establishing various diocesan funds (c. 1274).

Based on the sacramental nature of marriage between baptized persons, the Church also claims independence from civil laws regulating the essential aspects of marriage. The Church acknowledges competence in the state to regulate only the "merely civil effects" of marriage, such as dowry and change of name (c. 1059). Permission of a local ordinary is required, however, except in case of necessity, to assist at a marriage that would not be recognized by the civil law (c. 1071n1).

As to the "canonization" of civil law, the code affirms, as a general principle, that civil laws to which the law of the Church defers are to be observed in canon law with the same effects as in civil law, to the extent that they are not contrary to divine law or to particular provisions of canon law (c. 22). The most far-reaching instance of such "canonization" is in regard to the law of contracts (c. 1290), although restrictive canonical provisions governing alienation (transfer of ownership) and the more important acts of administration often create conflict. With only a few exceptions, the code also defers to civil law in regard to the adoption of children (c. 110), the designation and authority of guardians of minor children (c. 98n2), the emancipation of a minor for purposes of acquiring an independent legal domicile (c. 105n1), the kind of legal action to be taken to recover possession of property (c. 1500), and prescription as a means of acquiring or losing a right or freeing oneself from an obligation (c. 197, 1268). In the remuneration of employees and other persons who render service to the Church, civil laws are to be observed in regard to just wage, conditions of employment, health, disability and retirement benefits, unemployment insurance, and social security (cc. 1286, 231n2).

Other references to civil law in the Code of Canon Law concern the qualifications of members of a diocesan finance council (c. 492), renunciation by religious of the right to own property (c. 668n4), structuring a process of conciliation or arbitration for the resolution of a dispute between private parties (c. 1714), judicial involvement in arbitration proceedings (c. 1716), authenticity of a mandate for marriage by proxy (c. 1105), and enactment by episcopal conferences of particular law regarding betrothals (c. 1062n1).

Some provisions in the Code of Canon Law that make no reference to civil law may, nonetheless, have church-state implications in some nations. Thus, for example, the requirement that teachers of theological disciplines in institutes of higher learning have a mandate from ecclesiastical authority (c. 812) may have implications in the United States for accreditation and government funding of Catholic colleges and universities.

Bibliography: j. p. beal et al., eds., New Commentary on the Code of Canon Law (New York 2000). t. f. donovan, The Status of the Church in American Civil Law and Canon Law (Wash., D.C.1966). s. a. euart, Church-State Implications in the United States of Canon 812 of the 1983 Code of Canon Law (Wash., D.C. 1988). a. j. maida and n. p. cafardi, Church Property, Church Finances, and Church-Related Corporations (St. Louis 1984). j. j. mcgrath, Catholic Institutions in the United States: Canonical and Civil Law Status (Wash., D.C. 1968). a. ottaviani, Institutiones Iuris Publici Ecclesiastici, v. 2 Ecclesia et Status (Vatican City 1960). p. ciprotti, "Le 'Leggi Civili' nel Nuovo Codice di Diritto Canonico, "Apollinaris 57 (1984) 281293. e. m. tetlow, "The New Code of Canon Law and Church-State Relations, "Loyola Law Review 29(1983) 11131155.

[r. t. kennedy]