Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law

Hardcover | April 3, 2012

byJohn J. Coughlin

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Law, Person, and Community: Theological, Philosophical and Comparative Perspectives on Canon Law explores the understanding of the human person that underpins canon law. From theological, philosophical, and comparative perspectives, the book poses the question: "What is law?" The bookpresents canon law as a classical legal system in which the positive law is derived from natural and divine law. The classical approach to law rests upon an understanding of human nature in which reason is able to know first principles and universal goods. The book indicates that the classicalunderstanding contrasts with the modern positivistic theory of law in which the parameters of human reason are limited by the need for empirical verification. In the classical approach, law also reflects the supernatural destiny of the human person. This supernatural end leads to the priority of the contemplative over the political in the design of positive law. In comparison, liberal theory favors a political conception of justice and the human person. Although the classical approach to law recognizes universal norms, it remains open to the historically contingent. As illustrative of its historical development, canon law affirms the right of religious freedom on the basis of the traditional Western doctrines of the dignity of the human personand the separation of church and state. Religious freedom is understood not only as the freedom of individual belief but freedom for the religious community to prosper through the practice of its faith in the pluralistic society. The book suggests that the classical approach to law with its groundin natural and supernatural truth affords a more firm foundation for the development of human rights than does the modern positivistic theory of law. The book further describes the classical role of law in setting the optimal conditions for human flourishing through membership, participation, andsolidarity in community. Canon law fulfills this function for the religious community of the Catholic Church. The book juxtaposes canon law's view of religious freedom with that of the modern secular state in which religious freedom has been reduced to a matter of private belief. Employing the example of United Statesconstitutional law, the book describes how the modern secular state has curtailed the function of law in fostering the freedom of the religious community in the public order. The book observes that the modern view is at odds with religious traditions such as Judaism, Catholicism, and Islam in whichthe practice of faith depends on the proper relation between law, person, and community. The book thus proffers that canon law serve as a dialog partner in the broader discussion about what is law.

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Law, Person, and Community: Theological, Philosophical and Comparative Perspectives on Canon Law explores the understanding of the human person that underpins canon law. From theological, philosophical, and comparative perspectives, the book poses the question: "What is law?" The bookpresents canon law as a classical legal system in ...

John Coughlin is a Professor of Law at the University of Notre Dame. Prof. Coughlin served as professor of canon law of St. Joseph's Seminary in New York from 1994 to 2001. He also served the Archdiocese of New York as a judge in the Appeals Tribunal, as vicar of canonical and legal aspects of health care, and as a member of the board...
Format:HardcoverDimensions:288 pages, 9.25 × 6.12 × 0.98 inPublished:April 3, 2012Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199756775

ISBN - 13:9780199756773

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Table of Contents

Preface and AcknowledgmentsAbbreviationsIntroductionI. KnowledgeII. LawIII. PersonIV. CommunityV. An Overview of This Study1. Canon Law and AnthropologyI. Anthropology and the Foundation of LawII. Anthropological CharacteristicsA. Human NatureB. The BodyC. The SoulD. ReasonE. AffectF. ConscienceG. Free WillH. MemoryI. The Person as Social BeingJ. The End of the Human PersonIII. Conclusion2. Canon Law and TheologyI. Canon Law: Ordinance of Faith and ReasonA. Biblical AnthropologyB. Historical and Ontological in Canon LawC. Anthropology and RevelationD. Epistemology and Canon LawII. The Theological Justification of Canon LawA. Thomas, Luther, and CalvinB. Charism and InstitutionC. Communio and Canon LawIII. Conclusion3. Canon Law and Natural LawI. Human Nature as a Foundation for LawA. The New Natural Law TheoryB. The Function of Natural Law in Canon LawC. The Relation Between Natural Law and Theology in Canon LawII. Classical and Modern Conceptions of Law and ReasonA. The Classical Understandings of Law and ReasonB. Law and Competing Modern Conceptions of ReasonIII. Conclusion4. Canonical EquityI. Historical Development of Canonical EquityA. The Medieval CanonistsB. St. Thomas and Su rezC. The Standard of Canonical EquityII. Canonical Equity in the Twentieth Century CodesA. Expressed EquityB. The Equitable Character of the StatuteC. Unwritten EquityIII. Historical Consciousness and the Objectivity of Canon LawIV. Conclusion5. Development in Canon LawI. The Development of Canon Law and the Development of DoctrineA. Newman's Anthropological AnalogyB. Papal Primacy1. Sacred Scripture and Tradition2. Head and Body3. The CIC-1983II. Fundamental Rights in the CIC-1983A. The Meaning of IusB. The Doctrine of Human Dignity and Human Rights LawC. The Natural Foundation of Human RightsD. The Theological Foundation of Human RightsIII. A Comparison of Development in Canon Law with Positivism's Secondary RulesIV. Conclusion6. Personalism in MarriageI. The Goods of MarriageII. The Classical Understanding of Marriage and SecularizationA. The Medieval Theory of MarriageB. The Demise of the Classical UnderstandingIII. The Development of the Personalist Perspective in Canon LawA. Personalism and Vatican IIB. Jurisprudence of the Roman RotaIV. Conclusion7. Canon Law and the Secular StateI. Traditional and Modern Views of Church State RelationsII. Anthropological Assumptions and the First AmendmentA. Theological AnthropologyB. Rationalist AnthropologyIII. The Catholic Schools and the First AmendmentA. Schools and the One Best SystemB. Strict-SeparationismC. Problems with Public Policy by Judicial ReviewIV. Conclusion8. The Impact of Neutral Rules on Hierarchical ChurchesI. The Supreme Court's Neutral Rules ApproachA. Judicial Deference to Hierarchical ChurchesB. Neutral RulesC. Problems with NeutralityII. Questions about the Impact of Neutral Rules on Hierarchical ChurchesA. The Secular Court's Competency Over Church Doctrine and LawB. Congregational v. Hierarchical Church GovernmentC. Tort Liability for Essentially Religious DecisionsD. Excessive Entanglement and Judicial ReviewE. Generally Applicable Law and Religious FreedomIII. ConclusionConclusionI. LawII. PersonIII. Community