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THE JURIST 65 (2005) 1-30

A CRISIS OF LAW?
REFLECTIONS ON THE CHURCH AND
THE LAW OVER THE CENTURIESt

CHARLES DONAHUE, JR.*

The Church in the United States today is faced with a crisis of law as a
result of what has come to be called "the clergy sexual abuse scandal."
We should question the motivation of that statement. There is something
about this particular crisis that has caused virtually everyone to jump on
his or her hobby horse, and law is my hobby horse. We have heard that
the American media are persecuting the church in a manner reminiscent
the persecution of Diocletian.1 And we have heard that the cause of the
crisis is the failure of the church to ordain women. 2 Reconciliation of
those points of view is not possible in an article of this scope. Perhaps we
can agree that as diagnoses of the cause of the crisis both contain some
exaggeration. We have also heard that the cause of the crisis is the failure
of American Catholics to accept the teaching of Humanae vitae;3 and we
have heard the cause of the crisis is the failure of the hierarchy fully to
implement the reforms of the Second Vatican Council, particularly with
regard to the role of the laity in the Church. 4 The distance here, though

t Copyright Charles Donahue, Jr. 2004. This paper was originally given as a lecture
sponsored by the Catholic University of America School of Law's Interdisciplinary Pro-
gram in Law and Religion. Although I have provided a some references and made some
stylistic changes, I have not altered the tentative and exploratory nature of the lecture. In
addition to two of the commentators on the occasion of the lecture whose specific contri-
butions to the paper are acknowledged at the appropriate places (below, notes 52, 70),
thanks are owing to Andrew Varcoe, Esq., for perceptive comments from a Protestant per-
spective and to Mark Schneider and Laurie Burlingame for assistance with the footnotes.
Mr. Varcoe points out that discussions about the sexual behavior of the clergy are also now
taking place in Protestant circles. We have been unable to pursue those discussions here,
but a comparative study would be of considerable interest.
* Paul A. Freund Professor of Law, Harvard Law School.
See the widely reported comments of Oscar Cardinal Rodriguez Maradiaga of Hon-
duras. E.J. Dionne Jr., "A Cleric Gets It All Wrong," The Washington Post (June 11, 2002)
A25.
2 See Michael Paulson, "Theologians Call for Wider Debate," Boston Globe (June 8,
2002) A l; Jane Lampman, "Reaching Out... For Reform," Christian Science Monitor
(April 4, 2002) 14.
3 George Weigel, The Courageto Be Catholic: Crisis,Reform and the Future of the
Church (New York: Basic Books, 2002) 67-78.
4 Michael Paulson, "Lay Catholics Issue Call To Transform Their Church," Boston
Globe (June 21, 2002)Al.
 THE JURIST

large, may be surmountable, and we may be able to reconcile at least

pieces of these views. Finally, we have been told that all that we need to
do is to enforce the existing provisions of the Code of Canon Law on the
sexual behavior of the clergy; and we have been told that those provi-
sions need radical reform. 5 That these last two points of view can be, and
are being, compromised and
6
reconciled is relatively obvious, and we will
say little about that issue.
There is one sense in which the current crisis is a crisis of law, a sense
with which we all might agree, but which may be symptomatic rather
than etiological. No one who has watched the events of last four years
unfold can fail to be struck by how much bad lawyering has been re-
vealed. The staff of the archbishop of Boston seemed to be unaware that
canon 1277 of 1983 code calls for the consent of, not simply consultation
with, the diocesan finance council and college of consultors for acts of
extraordinary administration. 7 Dozens of secular lawyers settled dozens
of cases for dioceses all over the country, and none of them seems to have

5 Thomas P. Doyle, "Commentary: Reflections From the Eye of the Hurricane," Na-
tional Catholic Reporter (June 21, 2002), available at http://www.natcath.org/crisis/
062102g.htm. The alternative point of view (no fundamental change needed) I have heard
frequently in conversation. We will argue here that the existing provisions of the 1983
code are substantively adequate to deal with the issue of clerical sexual abuse of minors.
Whether the procedures are adequate is a more difficult question and not one with which
we will deal here.
6 As evidenced in the Vatican's acceptance, as modified, of the American bishops'
policy on clergy sexual abuse, coupled with the taking by the Congregation for the Doc-
trine of the Faith of all such cases to itself. Letter from Giovanni Battista Cardinal Re, pre-
fect of the Congregation for Bishops, to Bishop Wilton Gregory of Belleville, Ill., presi-
dent of the U.S. Conference of Catholic Bishops (December 16, 2002), in Origins, CNS
Documentary Service, 32 (2003) 476-478 (conveying the decree of December 8, 2002,
granting recognitioto the "Essential Norms for Diocesan/Eparchial Policies Dealing with
Allegations of Sexual Abuse of Minors by Priests or Deacons"); John Paul II, Apostolic
Letter Sacramentorum sanctitatistutela (April 30, 2001), available at http://www.vatican
.va/holy-father/john-paul-ii/motu-proprio/ (the letter, issued motu proprio,appears to be
misdated January 10, 2002, in the index to the web site; perhaps this is the date when it was
made public); Letter from Joseph Cardinal Ratzinger, prefect of the Congregation for the
Doctrine of the Faith, and Archbishop Tarcisio Bertone, SDB, secretary of the Congrega-
tion for the Doctrine of the Faith (May 18, 2001), in Origins 31 (2002) 528 (explaining
norms reserving certain grave delicts to the congregation and requiring bishops to report
such delicts to the congregation) (unofficial translation).
7 1983 code, c. 1277. Unless otherwise stated, I have used the translation found in
New Commentary on the Code of Canon Law, ed. John P. Beal, James A. Coriden, and
Thomas J. Green (New York: Paulist Press, 2000). For an account of the Boston confusion,
see Michael Rezendes, "The Geoghan Settlement," Boston Globe (May 8, 2002) A 16. The
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 3

had the courage or foresight to say to his client, "Your excellency (or
your eminence), you know that there's no way in late twentieth century
America that you're going to be able to keep the lid on this, and when it
comes out, there's going to be hell to pay." Bad lawyering may, of course,
be simply the result of bad lawyers, but there has been so much of it that
it may be symptomatic of something deeper.
So, perhaps, we should step back and take a longer view, a much
longer view. Is there something about the relationship of the Church to
the law over the course of centuries that might help to explain why we are
in the awkward situation in which we find ourselves today? In order to do
that we are going to have to go back centuries before the issuance of Hu-
manae vitae in 1968, or the close of the Second Vatican Council in 1965.
This will be history, dangerous history-because diachronic history of
this sort can rapidly lead into methodological quagmires-but history.
Law may also provide an answer, a way out. That is not history, and when
we get to that, I will be explicit that I am ceasing to be an historian and
commenting from the point of view of a secular lawyer, or simply a con-
cerned Catholic.
The "methodological quagmires" to which the previous paragraph
refers may be outlined briefly. Historians are methodologically commit-
ted to the proposition that things change over time. The person, group, or
society that uses yesterday's solutions to solve its present problems is en-
gaged in a hopeless exercise, because things change. Writing history
with today's problems in mind will almost certainly result in anachronis-
tic, "presentist" history. The historian must distance him- or herself; oth-
erwise, he or she cannot make impartial judgments. Some of these gen-
eralities are more controversial than others; but they are all widely
shared, in smaller or larger measure, among historians today, and I am a
member of the tribe.
I also have a more personal methodological discomfort. I am a text-
based historian. My work proceeds by looking at a relatively small body
of source material, and trying to get as much as possible out of it. But if
we are going to talk about the relationship between the Church and the
law over the course of 2000 years, we are going to have to paint with a
very broad brush; we are going to have to have summarize in a sentence

phrase "extraordinary administration" in canon 1277 obviously requires interpretation,

but there was no doubt that a settlement which would have involved the expenditure of
many millions of dollars of diocesan funds fell into that category.
 THE JURIST

or paragraph topics to which scholars have devoted years, even lifetimes.

That process runs grave risks of superficiality. We will try to avoid it by
focusing on a few moments and a few texts, but the danger remains.
The relationship of the Church to law has varied remarkably over the
centuries. To get some sense of it, let us focus on four broad periods, pe-
riods in which something happened that caused a change or in which a
particular relationship was most fully illustrated. The focus will be on the
Church as a whole, and not on the Church in the United States, about the
history of which I can claim no particular expertise. In each period we
will try to say something about the two issues that we identified at the be-
ginning of the paper: how the Church is organized, ecclesiology, and sex-
ual morality, particularly that of the clergy. 8 I will say more about the ear-
lier periods than the later ones, both because I am more familiar with the
earlier periods and because the later ones are more generally familiar.
The Apostolic Period."The Law of Yahweh is perfect, refreshment to
the soul; the decree of Yahweh is trustworthy, wisdom for the simple. The
precepts of Yahweh are honest, joy for the heart. The commandment of
Yahweh is pure, light for the eyes.... [T]he judgments of Yahweh are
true, upright every one, more desirable than gold, even than the finest
gold; his words are sweeter than honey that drips from the comb."9 So
sings the psalmist in the nineteenth Psalm. To the Jew this is all quite
straightforward. The "Law of the Lord" is the Torah. If one cannot react
to it in the way that the psalmist does, one can hardly be a Jew. Love of
God and love of the Law are inextricably intertwined.
For most Christians, we might suggest, it is not quite so straightfor-
ward. Christians have the sense that law is not what their religion is all
about. After all did not Jesus say, "Woe also to you lawyers! For you load
people with burdens that are hard to bear, and you yourselves do not lift a
finger to ease them."? 10 But this, of course, is not a condemnation of law
but of lawyers.1 Despite the many harsh words that Jesus speaks about

8 For a comprehensive treatment of the second issue, see James A. Brundage, Law,
Sex, and Christian Society in Medieval Europe (Chicago: Chicago University Press,
1987). I can recommend no single work on the first issue but will offer references to stud-
ies of particular periods.
9 Ps. 19:7-10 (New JerusalemBible [NJB]).
10 Lk. 11:47 (New Revised Standard Version [NRSV]); cf. Mt. 23:13-22; Mk.
12:38-40.
I The word 'lawyer,' of course, requires considerable translation for the world of the
New Testament. The Vulgate, legisperitis, 'experts in the Law', i.e., the Torah, catches it
quite nicely.
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 5

lawyers, there is nothing that he says that deprecates the Law itself: "In
truth I tell you, till heaven and earth disappear, not one dot, not one little
stroke, is to disappear from the Law until all its purpose is achieved. 12
Consider chapter 12 of Mark's Gospel, Mark's version of the pericope
of the two great commandments. 13 The scene is the temple in Jerusalem,
and an itinerant preacher from Galilee has just won legal arguments with
both the Pharisees and the Sadducees. 14 A scribe, a lawyer, not identified
in Mark with any party, thinks that there may be something to this ' 15
Galilean, and he asks him "Which is the first of all the commandments?"
That was not the first time that that question had been asked. In the
generation preceding Jesus there were two great teachers in Israel,
Shammai and Hillel. Someone asked Shammai to teach him the law
while he was standing on one foot. Teachers get a lot of questions like
that, particularly at the end of the school year: "Professor, what was the
main point of this course?" And our reaction is like Shammai's: "There
are 613 commandments; I can't teach them all to you while you're stand-
ing on one foot." So the questioner went to Hillel. Hillel paraphrased
Leviticus 19:18: "What is hateful to you, do not do to your neighbour,"
he said, "That is the whole16
Torah, while the rest is the commentary
thereof; go and learn it."
Hillel's response was brilliant. It went to the core of much of what the
law was all about. It nicely summarized what centuries of prophetic
teaching had been driving home: "'What to me is the multitude of your
sacrifices?', says the Lord. 'I have had enough of burnt offerings of rams
and the fat of fed beasts. I do not delight in the blood of bulls, or of lambs,
or of goats.... [C]ease to do evil, learn to do good; seek justice, rescue
the oppressed, defend the orphan; plead for the widow.' "17 But somehow
12 Mt. 5:18 (NJB).
13 The versions of the pericope in Mt. 22:34--40 and Lk. 10:25-28 suggest that the
questioner is dishonest, trying to trap Jesus. I do not see this in Mark's version.
14 In the two preceding pericopes the Pharisees "and the Herodians" (i.e., members of
the political elite associated with Herod Antipas) ask if it is lawful to give tribute to Cae-
sar; and the Sadducees ask about a woman who contracted a levirate marriage with seven
brothers. Mk. 12:13-27.
15 Mk. 12:28 (NJB).
16 Babylonian Talmud, Shabbat 3 1a, translated in Sabbath, Hebrew-English Edition
of the Babylonian Talmud, ed. I. Epstein, trans. H. Freedman (London: Soncino Press,
1960)1.
17 Is. 1:11, 17 (NRSV); cf. Hos. 6:6; Mic. 6:6-8, and many parallels. There are sub-
stantial problems with Is. 1:17. Suffice it to say here that the phrase translated above as
"rescue the oppressed" may mean "discipline the violent" (NJB).
 THE JURIST

Hillel's response was not satisfactory. It made no reference to God. It

took no account of the fact that every observant Jew began and ended
every day with the words of Deuteronomy 6:4: "Hear 0 Israel: the lord
our God the lord is one."' 8 And, Jesus, much of whose teaching is like
Hillel's, begins where Hillel had not begun: "The first commandment is,
'Hear 0 Israel: the Lord our God, the Lord is one; you shall love the Lord
your God with all your heart, and with all your soul, and with all your
mind, and with all your strength."' 9 The second commandment, then, is
Hillel's, but like Leviticus 19:18 it is phrased positively
' 20
rather than neg-
atively: "You shall love your neighbor as yourself.
The scribe is impressed. He pays the itinerant preacher the highest
compliment that he knows. He calls him, it would seem, 'rabbi'. 2' He re-
peats his teaching almost word for word, 22 and then he shows that he un-
derstands what Jesus has said: "This is far more important than any burnt
offering or sacrifice." 23 The prophetic tradition, the scribe now sees, is
dependent on the love of God, and from that derives love of neighbor.

18 The author's translation. The phrase can also mean, "the Lord is our God, the Lord
alone." See NRSV and suggested alternatives in footnote n. The commandment for twice
daily recitation follows in Dt. 6:7; for its interpretation see Babylonian Talmud, Berakoth
2a-26a, translated in Berakoth, Hebrew-English Editionof the Babylonian Talmud, ed. I.
Epstein, trans. Maurice Simon (London: Soncino Press, 1960) (chapters 1-3 of Berakoth).
'9 Mk. 12:29-30(NRSV).
20 Mk. 12:31 (NRSV); cf. Lv. 19:18 (NRSV): "You shall not take vengeance or bear a
grudge against any of your people, but you shall love your neighbor as yourself: I am the
Lord."
21 Mk. 12:32 (NRSV). The Greek is &it6coctx, which can mean either "teacher" or
"master." This is, of course, what the Aramaic :n meant, or was coming to mean, in this
period. See Hayim Lapin, "Rabbi," in Anchor Bible Dictionary,ed. David Noel Freedman
et al. (New York: Doubleday, 1992) 5:600-602. Mark uses the Greek transliteration
(pcxpi) of the word ,n-i three times, twice in the mouth of Peter (9:5, 11:21) and once
in that of Judas (14:45); &Micctko;occurs eleven times, most often in the vocative
(4:38, 5:35, 9:17, 9:38, 10:17, 10:20, 12:14, 12:19, 12:32, 13:1, 14:14). An examination of
these passages suggests, at least to me, that Mark was using 8t36a(o; as a translation
of m:, but the matter is controversial. Ibid. Perhaps more important, in ch. 12, Mark has
both the Pharisees and the Sadducees address Jesus as &tkaiaXE when they pose their
trick questions, while the scribe waits to call him &UaKa4r until he hears the answer to
his.
22 Mk. 12:32-33 (NRSV). This passage sounds to the modem ear as if the scribe is
being condescending. He is not; he is repeating the teacher's saying, so that he may mem-
orize it. See Daniel J. Harrington, "The Gospel According to Mark," in New Jerome Bib-
lical Commentary, ed. Raymond E. Brown et al. (Englewood Cliffs, NJ: Prentice Hall,
1990) 622.
23 Mk. 12:33 (NRSV).
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 7

Jesus returns the compliment: "You are not far from the kingdom of
24
God."
It is really quite remarkable how many of the sayings of Jesus can be
shown to reflect contemporary debates within Judaism about the law.
Now if this is even half right, then something happened, and it happened
very quickly. And what happened is all the more puzzling because the
Christian Church was founded in a culture, the Jewish, that had an extra-
ordinary penchant for law; and it quickly became associated with another
culture, the Roman, that also had an extraordinary penchant for law.
What is surprising, then, is not that the Christian Church early on chose
what look to us like legal forms in which to express herself, but that she
did so relatively infrequently. I say "what look to us" because the author
of Matthew's Gospel probably thought that a great deal of his book was
about law, notably the sermon on the mount. Today, however, we think of
it as dealing with morality; and, unlike the Jews of Jesus' day, we tend to
make a sharp distinction between law and morality. How that fundamen-
tal division took place cannot be fully part of our story, but it has to be
some of it.
Indeed, there is a streak of what might almost be called antinomianism
in early Christian writing. There are, for example, some statements in the
Gospels that could be interpreted as antinomian but need not be, like
"Woe unto you lawyers." The fact that this saying is in both Matthew and
Luke indicates that it probably comes from a tradition that antedates the
first destruction of Jerusalem in 70 A.D., but Matthew and Luke were
both redacted after that time. Hence, the emphasis on this point may
come from a period when Christians were increasingly defining them-
25
selves in opposition to Jews.
There is also a considerable amount of what might be called antino-
mianism in early Christian non-biblical writing.26 After the Bar Cocheba
revolt of 135, Christians distanced themselves from what was going on at

" Mk. 12:34 (NRSV).

25 The argument here is that the "woe unto you" passages in Lk. 11:42-52 and Mt.
23:13-22 come from a tradition that is independent of Mk. 12:38-40. Since Matthew and
Luke are generally regarded as not being dependent on each other, this tradition must be a
collection of "sayings of the Lord" that almost certainly dates from before 70 A.D. See
Frans Neirynck, "Synoptic Problem," in New Jerome Biblical Commentary, 587-595.
26 The name most closely associated with this position is Marcion, a dualist heretic of
the second century. A convenient account of him may be found in The Oxford Dictionary
of the Christian Church, ed. F.L. Cross and EA. Livingston, 3d ed. (New York: Oxford
University Press, 1997) [ODCC], s.n., with references to further literature.
 THE JURIST

Jamnia, a state of mind, perhaps, as much as place, where the rabbis gath-
ered to preserve Judaism after the disastrous events of the previous two
generations. These events were to lead to the redaction of one of the
greatest collections of law of all times: the Mishna, at the end of the sec-
ond century, and ultimately the Talmud, probably at the end of the fifth or
the beginning of the sixth century. 27 That law was not to be the law for
Christians.
But Paul's letter to the Romans, written probably in the winter of
57-58 in Corinth or Cenchreae on Paul's third missionary journey, shows
us the tradition before these breaks, 28 and the argument of Romans is
theological: According Romans, a Christian is not justified by the Mo-
saic law, a Christian is justified by faith. Because a Christian is justified
by faith, he or she is in some fundamentally important way freed from the
Mosaic law. 29 The Mosaic law is not only not a sufficient condition for 30
justification; it is also not a necessary condition for justification.
Whether that means that in some sense Luther got it right as a matter of
history is a much more difficult question. 31 Much depends on what hap-
pens when we move from what seems incontrovertible, that for Paul the
Mosaic law was not a necessary condition for justification, to the much
more difficult questions of what role, if any, law plays in the process of
justification and what role, if any, it plays in maintaining the Christian as
justified in the sight of God. What seems obvious, however, is that, as
Paul sees it, one becomes a Christian by believing in Christ Jesus, not by
accepting the Mosaic law. The next question, then, is how much of the
Mosaic law survives, and one of the first answers to that question that the
church gave is contained in what has come to be known as the council of
Jerusalem.

27 Of many accounts of this controversial topic, one that I have found eminently read-
able and convincing is David Weiss Halivni, Midrash, Mishnah, and Gemara: the Jewish
Predilectionfor Justified Law (Cambridge, MA: Harvard University Press, 1986).
28 Joseph A. Fitzmyer, "The Letter to the Romans," in New Jerome Biblical Commen-
tary, 830.
29 The key passages are Rom. 3:27-31 and 7:1-8:11.
30 Cf. Gal. 3:10-14, which at least suggests that adherence to the Mosaic law may be
a barrier to justification. (I owe this reference to Andrew Varcoe.) The bibliography is
large. For recent contributions, see Frank Thielman, Paul & the Law: a Contextual Ap-
proach (Downers Grove, Ill.: Intervarsity Press, 1994); E. P Sanders, Paul, the Law, and
the Jewish People (Philadelphia: Fortress Press, 1983). A number of recent views are sum-
marized in Stephen Westerholm, Israel'sLaw and the Church'sFaith: Paulandhis Recent
Interpreters (Grand Rapids, Mich.: W.B. Eerdmans Pub. Co., 1988).
31 See Joint Declaration on the Doctrine of Justification, in Origins 28 (1998)
120-127.
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 9

What happened at the council of Jerusalem is obscured in multiple ac-

counts,32 but it seems that the church faced, quite early on in her his-
tory,33 two related but separate issues about gentile converts: did the men
have to be circumcised and did they all have to follow the Jewish dietary
laws? The answer ultimately given to the first question was 'no'; the an-
swer to the second question was a compromise by which the elaboration
of the dietary rules was relaxed, though the rules about blood seem to
have been retained.34 My interest here is not the specific resolution,
which was quickly abandoned, but rather the need that the very early
church saw to have an authoritative body to resolve such questions. This
was almost certainly necessitated by the fact that taking some but not all
of the Mosaic law meant that there had to be an authoritative body that
decided what would and what would not be taken.
In the apostolic period, then, it is hard to see much in the way of for-
mal sources of law in Christianity. Romans and the council of Jerusalem
both tell us that the Pentateuch was rejected as a formal source of law,
and by doing this the Church committed herself to a development that
would be independent of the development that was taking place in rab-
binic Judaism at the time. We can explain this development in four ways,
and the explanations are not incompatible:
First, Jesus rejected the legalism of the Pharisees. This is not to say
that he rejected all that the Pharisees stood for; indeed, many of his say-
ings (like that on the two great commandments) are best understood his-
torically in the context of pharisaical teaching; but his teaching on the
Sabbath, 35 which is found in all strata of the sayings, clearly implies a re-
jection of an overly legalistic approach to the law, as does his condemna-

32 At least two are combined in Acts 15 and Paul's own in Gal. 2. Charles B. Cousar,
"Council of Jerusalem," in Anchor Bible Dictionary, 2:766-767 . Many, perhaps most,
modem interpreters would question whether we should speak of the council of Jerusalem,
as opposed to an ongoing debate which was eventually resolved in the way described in
the text. See, e.g., Joseph F. Fitzmyer, The Acts of the Apostles, Anchor Bible, 31 (New
York: Doubleday, 1998) 130-131.
33 50 A.D. if we are reading the temporal reference in Galatians right. See Joseph A.
Fitzmyer, "The Letter to the Galatians," in New Jerome BiblicalCommentary, 780; 783.
34 1 am glossing over here the substantial difficulties posed by Acts 15:29. For the pos-
sibilities, see Fitzmyer, Acts, 561-566.
" Mk. 2:22-3:6, Mt. 12:1-14, Lk. 6:1-11, 13:10-17, 14:1-6; Jn. 5:1-18, 7:20-24,
9:13-17. For an argument that these sayings fell within the range of legitimate argument
in first-century Palestine, see E .P. Sanders, Jewish Law from Jesus to the Mishnah: Five
Studies (Philadelphia: Trinity Press International, 1990) 19-23.
 THE JURIST

tion of the36Pharisees on a number of occasions, sometimes in quite harsh

language.
Second, the relative absence of what looks to us like law in New Tes-
tament writing may be more apparent than real. We have already sug-
gested that the author of the Gospel of Matthew probably thought of
much of Jesus' teaching as being about law, indeed about the Law. The
letters of Paul, particularly the longer letters, have, as has long been
noted, a definite structure, kerygma and didache. The kerygma is the
gospel: Christ has died, Christ is risen, and nothing can be the same; re-
pent and believe. The didache, which comes at the end, is what do we do
now. Here Paul tends to speak in generalities: avoid fornication, love one
another, but it has been suggested-and there is some subapostolic writ-
ing that supports this suggestion-that
37
there was considerably more con-
tent to the didache than that.
Third, a cultural explanation: The first major non-Jewish influence on
Christian thought was not Roman, but Greek thought; and law was not
the Greeks' long suit. The Greeks were masters of philosophy and
rhetoric, but they do not seem to have been particularly interested in the
manipulation of middle-level generalizations that is so characteristic of
great legal systems.
The fourth explanation is the practical one of the situation of the early
church. The apostolic mission was conceived of as a mission to all hu-
manity, Jew and Greek, slave and free, male and female, as Paul states it
in one of his remarkable statements of the equality of all Christians." For
the Church to have insisted on the observance of the whole of the Law
would have severely limited, to say the least, its appeal to non-Jews. So

36 E.g., Mk. 2:13-17, 7:1-23; Mt. 5:20, 9:9-13, 12:38-40, 15:1-20, 16:1-4,
21:33-46, 23:1-37; Lk. 5:27-32, 7:36-50, 11:37-54, 18:9-14.
37 On kerygma and didache, see James I. H. McDonald, Kerygma and Didache: The
Articulation and Structure of the Earliest ChristianMessage (Cambridge: Cambridge
University Press, 1979); C.H. Dodd, Gospel and Law; the Relation of Faithand Ethics in
Early Christianity,Bampton lectures in America (New York: Columbia University Press,
1951); for an example of Pauline didache, see Rom. 12-15; for the suggestion of consid-
erable content for the early didache, see the work known simply as Didache (or The Di-
dache of the Lord through the Twelve Apostles), a convenient translation of which may be
found in Early ChristianWritings: The Apostolic Fathers,trans. Maxwell Staniforth (Har-
mondsworth: Penguin, 1968) 223-237. This work may be as early as the mid-first centu-
ry. See ODCC, s.n. Andrew Varcoe reminds me that Rom. 14 suggests that for those strong
in faith elaborate dietary and fasting rules are not necessary.
" Gal. 3:28.
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 11

the law for the new Church was not to be the Mosaic law, at least not the
whole of the Mosaic law, and an authority had to be found to distinguish
between what the Christians would regard as essential and what they
would regard as unessential.
An authority would have to be found, at least if the Church were not to
splinter into multiple competing sects. So the question becomes why was
that deemed undesirable? In a later age, this question will become con-
sumed in secular politics. Unity is necessary in order to preserve the
unity of secular authority, but that is hardly the explanation for the
Church of 50 or 100 A.D. The answer must lie someplace in the early
church's understanding of communion, koinonia.This has been a myste-
rious concept in all periods of church history. Paul explains it with the
image of the body of Christ; 39 perhaps equally old is the concept of the
new covenant, like that of Israel with Yahweh. 40 The notion is that Chris-
tians do not approach God only one-by-one; they also approach him as a
group. In order for there to be group there has to be some authority to de-
termine who is in and who is out.
Having determined that there will be authority, the early church then
faced the question in whom will it be vested. To this question, the early
church seems to have given a number of different answers. We may dis-
tinguish three concepts: first, a diversity of ministries-prophets, teach-
ers, speakers in tongues are all mentioned in the sources; second, people
who had a connection with Jesus-those who were sent, the apostles,
and those whom the apostles commissioned, perhaps also in the case of
Paul, those whom the risen Jesus was thought to have commissioned; fi-
nally, the elders, presbyteroi,the other group in the church of Jerusalem,
who along with the apostles, and especially Peter, made the decision on
41
circumcision.
A not much later age will see an equation between the apostles and the
bishops who succeeded them, Peter and those who succeeded him as
bishops of Rome and the pope, the presbyteroi and the priests, and the di-
verse ministers and the lesser clergy, deacons, exorcists, porters, lectors,

39 E.g., 1 Cor. 12:12-31,Rom. 12:4-5.

40 E.g., 1 Cor. 11:25, Lk. 22:20; cf. Mt. 26:27, Mk. 14:23. The references are to Jer.
31:31 and Ex. 24. Also, 2 Cor. 3:6, with reference to Jer. 31:31 and Is. 59:21. For further
references, see John L. McKenzie, Dictionaryof the Bible s.n. "Covenant, NT" (Milwau-
kee: Bruce, 1965).
41 The key texts are, once again, 1 Cor. 12, Ac. 15, and the Didache. See ODCC, supra
note 27, s.n. "orders and ordination," with references.
 THE JURIST

and acolytes. These later divisions did not exist from the beginning, but
there would seem to be a continuity
42
between these earlier forms of
church order and the later ones.
So far as sexual morality is concerned, it is mostly buried in those
broad sayings of the didache: do not commit adultery, avoid fornication,
etc. Despite recent attempts to argue the contrary, I think there is rela-
tively little doubt that the Pauline didache included a strong condemna-
tion of homosexual sodomy.43 One writer in the New Testament, rightly
or wrongly, seems to have justified this condemnation on the basis of
what happened to the city from which sodomy derives its name. 44 Paul is
clear that the fact that a Christian is freed from the Law does not mean
that a Christian does not have to follow a quite strict sexual morality. The
Corinthian whom Paul quite firmly told that he was not free to marry his
stepmother had almost certainly misunderstood Paul's teaching. 45 The
so-called pastoral letters, Timothy and Titus, also suggest that a higher
standard of sexual morality was expected from those whom we would
call clergy. Notable here is the requirement, apparently derived from the
Jewish law for kohanim or priests, that an episkopos orpresbyterosbe the
"husband of one woman."46 Even after the adoption of clerical celibacy
in the west, this text was interpreted to mean that a widower could not be
promoted to the higher 47
orders if he had married more than once or if he
had married a widow.
If these are the characteristics of the legal system of the early church,
what are those of the fourth century when the Church had become em-
broiled in the secular world?4 8 In that century, the Roman Empire ac-

42 For a traditional account, see Jean Dauvillier, Les temps apostoliques: ler sicle,
(Histoire du droit et des institutions de l'lglise en Occident, 2) (Paris: Sirey, 1970)
223-237. For a more radical view, see Francis A. Sullivan, FromApostles to Bishops: The
Development of the Episcopacy in the Early Church (New York: Newman Press, 2001).
43 See Rom. 1:27, 1 Cor. 9-11, 1 Tim. 1: 10.
44 Jude 7. The Greek is a circumlocution (6cnX0o-crott 6tio0 o pKo;& stpcex "went
after other flesh"), and not all interpreters think that it refers to homosexual sodomy. E.g.,
Jerome H. Neyrey, 2 Peter Jude, The Anchor Bible, 37C (NewYork: Doubleday, 1993) 58;
60. I find plausible the traditional interpretation that it does so refer. E.g., Charles Bigg, A
Criticaland Exegetical Commentary on the Epistles of St. Peter and St. Jude (Edinburgh:
T&T Clark, 1902) 329-330.
45 1 Cor. 5:1-5.
46 1 Tim. 3:2; Tit. 1:5-6. The prohibition in Jewish law is derived from Lev. 21:7.
47 SeeX 1.21.
48 For what follows see Jean Gaudemet, L'Eglise dansl'Empire Romain Ive-Ve sicle,
(Histoire du droit et des institutions de l'tglise en Occident, 3), 2d ed. (Paris: Sirey, 1989).
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 13

cepted Christianity first as an official religion and finally as the official

religion. Acceptance by secular authority, particularly in a world that
would have regarded the notion of separation of church and state as
bizarre, automatically involved a number of things: It now became even
more important to know who was in the Church and who was not. The
Greek councils and the struggle for orthodoxy involved a struggle for the
loyalty of an empire. Councils not only decided monumental theological
issues like the definition of the consubstantiality of the Son with the Fa-
ther; they also passed canons, rules necessary for administration; and ad-
ministration became more complex as the official church now had to
speak with an official voice. The earliest council for which we have
canons, that of Elvira around 306, decreed that those who had sexual re-
lations with children were to be excommunicated permanently; such
people could not communicate even at the point of death. 49 As time went
on, the official church came to ape official administration. The decretal
letters of the popes took on a vocabulary similar to the constitutions of
the Roman emperors. When the Roman emperors abandoned Rome, the
pope took on many of the functions of the Roman authority in Rome.
Nonetheless, law seems to have played a somewhat subsidiary role in
the life of the early church. We might ask if we are expecting too much to
ask that law express the profoundest understandings of a religion of it-
self. But then we might note that three of the world's great religions, Ju-
daism, Islam, and, I believe, Hinduism, have used law to express some of
their profoundest insights; and this has been made compatible with the
deeply spiritual dimensions of all three religions. Law was to become
more important in the life of the Church; we can see this happening al-
ready in the late Roman empire. But the flowering of law within the
church belongs solidly to a later period.
The so-called GregorianReform. 50 For convenience, we will begin the
second period around the year 1000. In the eleventh century churchmen

49 Council of Elvira (c. 306), c. 71, in La colecci6n can6nica Hispana, ed. Gonzalo
Martinez Dfez and FRlix Rodriguez (Madrid: Consejo Superior de Investigaciones Cien-
tificas, Instituto Enrique F16rez, 1984) 4:265. It may apply only to boys: "Stupratoribus
puerorum nec in finem dandam esse communionem." This canon may not, in fact, come
from the Council of Elvira. See Jean Gaudemet, Les sources du droit de l'tglise en Occi-
dent du lie au Vile sicle (Paris: Editions du C.N.R.S., 1985) 49, n. 67, and source cited.
50 For what follows, see Uta-Renate Blumenthal, The Investiture Controversy: Church
and Monarchy from the Ninth to the Twelfth Century (Philadelphia: University of Penn-
sylvania Press, 1988); Brian Tierney, The Crisis of Church & State, 1050-1300 (Engle-
wood Cliffs, NJ: Prentice Hall, 1964); Gerd Tellenbach, Church, State, and Christian
 THE JURIST

looked around them, and they did not like what they saw. In the preced-
ing centuries, the Church had been called upon more and more to support
the defense of the realms in which she found herself and to use her lands
to support knights. The Carolingian view of kingship was theocratic and
sacral. Coronation was a kind of sacred orders giving the king, and par-
ticularly the emperor, a sacred character. By the eleventh century the mil-
itary role of ecclesiastical land and the religious role of the king had com-
bined to turn bishops and abbots into great feudal barons. They were
appointed by the king. They received the regaliaof their office, including
the ring and staff, which were symbols of their spiritual authority, from
the king or emperor. They did homage to him. They led their knights into
battle. This feudalization (a term of which we have learned to be very
careful) of the Church was accompanied, perhaps inevitably, by serious
abuses. Simony was rampant. The ideal of clerical celibacy was hardly
even preached much less observed. Religious observance in monasteries
was lax or worse. At the parish level, at least in some places, religious ob-
servance hardly existed. Also at the parish level feudalization of a differ-
ent sort had taken place. The local lord owned the church (Eigenkirche),
and the parish priest was the lord's man.
The first wave of the reform movement goes back into the tenth cen-
tury with the reform of the monasteries under the leadership of the great
Burgundian abbey of Cluny. In this reform the emperor participated. The
emperor Henry 11 (973-1024) of Germany led an essentially monastic re-
form movement. He and his empress Kunigunde were both canonized.
The second wave of reform comes in the mid-eleventh century with Leo
IX and is firmly associated with Gregory VII. The Gregorian program of
reform is an interesting one: (1) an end to simony, which in turn leads to
an end to lay investiture, and to an end to lay ownership of churches; (2)
enforcement of clerical celibacy, and (3) general moral reform. To
achieve all these things the reformers sought recognition of the primacy
of spiritual power over temporal, of the power of the pope over that of
any lay magnate, and-and perhaps this is the most important feature for
5
subsequent history-a radical separation of the clergy from the laity. '

Society at the Time of the Investiture Contest, trans. Ralph Francis Bennett (Toronto: Uni-
versity of Toronto Press, 1991). For a convenient and useful introduction to canon law in
the entire medieval period, see James A. Brundage, Medieval Canon Law (New York:
Longman, 1995).
51 In commenting on this paper, Professor Blumenthal suggested that not all the re-
formers espoused what a later age would see as clericalism. Gregory VII, for example,
tried to engage the laity in his reform movement (and was criticized for doing so).
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 15

The element of this program which caused the most immediate con-
troversy was lay investiture. Almost everyone, lay and cleric, agreed that
moral reform was desirable, however unwilling he might be to reform
himself. The general argument about political power in the eleventh cen-
tury came to bear on the question of lay investiture The problem was
symbolic but also practical. Land gave power, and no monarch was will-
ing to see anyone in his realm acquire the power of a bishopric without
having control over who the bishop would be.
That to a certain extent tells us why the question could not be resolved
by separation of church and state in the modem fashion. But the problem
ran deeper: No one in the eleventh century and very few in the twelfth
could conceive of the office of bishop being separated from the land, so
intertwined had land and office become. Only in the early twelfth century
was a way out perceived. Lay investiture was abolished, but the prelates
continued to do homage to the rulers for their lands. This division of
homage from investiture allowed the Church to win the symbolic issue,
while the rulers retained their practical control.
In one sense, of course, the Gregorian reformers anticipated the mod-
em separation of church and state. The reformers wanted to separate the
Church from secular society. They wanted the clerical state separated
from the lay to symbolize the separation of the spiritual from the tempo-
ral. Their efforts could not, however, lead to a separation of church and
state in the modem sense, because the modem nation state did not exist
in the eleventh century. The reformers' ideas were also different from
modem ideas on the topic because the reformers wanted the spiritual to
control the temporal. Much of the history of the conflict between regnum
and sacerdotium is bound up in people's inability to escape from this ar-
gument by analogy: The soul controls the body; therefore, the pope
should control the emperor.
We must emphasize that not all of the reform movement was con-
cerned with power relationships with secular authorities. It was a broad
program in which internal reform played an important role. At the end of
the reform movement, however, church and state, to use modem and
anachronistic terms, were established as powers neither of which could
completely dominate the other. The rule of law was necessary if every-
thing was not going to collapse into chaotic warfare, which it sometimes
did.52 Having two coordinate powers also made people think about what
52 For this point with a somewhat different emphasis, see Harold J. Berman, Law and
Revolution: the Formationof the Western Legal Tradition (Cambridge, MA: Harvard Uni-
versity Press, 1983).
 THE JURIST

political and religious power is all about. The importance of the reform
movement for law, more strictly speaking, is another matter. For our pur-
poses probably its most important characteristic is the way that both
sides made use of material from the first millennium of Christian tradi-
tion to marshal authorities for their side of the argument. The legal col-
lections of the eleventh themselves may not be very systematic, but there
is no doubt that the men of that century knew how to make an argument
based on authority.
By the beginning of the twelfth century, some separation of the eccle-
siastical from the secular spheres had been achieved, and perhaps in re-
action to it there was an extraordinary revival of the study of Roman law.
Gratian of Bologna comes in the generation of church reformers who
accompanied this revival.53 His book, the Concordance of Discordant
Canons or Decretum served the function of giving the canonists a text
like that of the Corpus Iuris Civilis for the civilians or the bible for the
theologians.
In ecclesiology Gratian focused on three themes: 54 (1) the duality of
the Church as both an earthly and a spiritual body, (2) the problem of
membership in the Church, and (3) the role of the hierarchy in the
Church. He was a moderate papalist. He strongly supported the separa-
tion of the clergy and religious from secular society.
As we have seen, one of the tenets of reform movement was the conti-
nence of the higher clergy and the general enforcement of sexual moral-
ity. Gratian includes a number of canons on both points. In particular, his
comments on a group of canons taken from patristic material shows that
he followed the by-his-time traditional view that the further that a sexual
act departed from the permitted norm, husband and wife in the context of
marriage, the worse it was.5 Adultery was worse than fornication, dou-
ble adultery worse than adultery where only one of the adulterous couple
was married. In this scheme of things incest and homosexual sodomy
were worse still, since both acts were contrary to nature. Shortly after

53 The suggestion in the text that the revival of Roman law studies was contemporary
with Gratian rather than, as it is usually put, about a generation previous to Gratian is
based on Anders Winroth, The Making of Gratian's Decretum (Cambridge: Cambridge
University Press, 2000).
54 For Gratian's ecclesiology see Stanley Chodorow, ChristianPoliticalTheory and
Church Politics in the Mid-twelfth Century; the Ecclesiology of Gratian's Decretum
(Berkeley: University of California Press, 1972).
55 C.32 q.7 cc. 11-16.
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 17

Gratian, canon 11 of the Third Lateran Council (1179) was to call for the
deposition from the clerical state of clerics who committed homosexual
sodomy.56 The same council renewed previous calls for clergy in major
orders to dismiss the women with whom they were living in concubinage
or lose their benefices. 5 7 We know that the provision about clerical con-
cubinage was enforced, not without difficulty. We are poorly informed
about the enforcement of the provision about clerical homosexual
sodomy.
After Gratian some popes and some canonists returned to the extreme
papalism that had characterized the thinking of some of the eleventh-
century reformers. The notion is that the Church in this world encom-
passed both clerical and lay society; the pope stands at its head; the
princes are subordinate to him. Neither all canonists nor all popes ad-
hered to this view in the thirteenth century, though
58
it was certainly the
view of Boniface VIII at the end of the century.
Perhaps more important was the extraordinary outpouring of papal
decretal law, which begins in the middle of the twelfth century and con-
tinues throughout the thirteenth. 59 These decretals were gathered into
collections, studied, and glossed. Every diocese, and many subordinate
ecclesiastical jurisdictions, had an ecclesiastical court. 6 The jurisdiction
of these courts varied depending on the settlement with the secular au-

56 Lateran III (1179), c. 11, in ConciliaOecumenicorum Decreta, 3d ed. (Bologna: Is-

tituto per le Scienze Religiose, 1972) [COD] 217-218. The argument is clearly scriptural:
"Quicumque incontinentia illa quae contra naturam est propter quam 'venit ira Dei in fi-
lios diffidentiae' [Eph. 5:6] et quinque civitates igne consumpsit [cf. Gn. 19:24-25], de-
prehensi fuerint laborare, si clerici fuerint eiciantur a clero ... si laici excommunicationi
subdantur .... " There is no evidence, however, that the author of Ephesians 5:6 was
thinking of Sodom or sodomy. I pass over here the question whether deposition from the
clerical state or confinement to a monastery or deposition from the clerical state and con-
finement to a monastery were the penalties imposed by the council. There is manuscript
support for both readings. COD 217 and n. w. Both readings are also found in manuscripts
of the Decretals of Gregory IX. X 5.31.4, in Corpus luris Canonici, ed. Aemilius Fried-
berg (Leipzig: B. Tauchnitz, 1879; repr. Graz: Akademische Druck, 1959), 1I,col. 836 and
n. 8. Both COD and Friedberg read "or."
17 Ibid.
58 The view can be most clearly seen in Boniface ViII's bull Unam sanctam (1302),
the most convenient text of which can be found in Extrav. Com. 1.8.1.
59 For a bibliographical introduction to the topic, see Jean Gaudemet, Les Sources du
droit canonique VIIe-XXe sidcle: repres canoniques,sources Occidentales(Paris: Cerf,
1993) 118-131.
60 A good general introduction may be found in Brundage, CanonLaw, 120-153, with
bibliography 239-241.
 THE JURIST

thorities in the area, but in all areas it was far wider than that of any ec-
clesiastical court today. In England, for example, the church courts dealt
not only with marriage and sexual sins, but also with testaments, defama-
tion, and, in some periods, with ordinary contract disputes. The church of
the high middle ages was a Rechtsstaat. There were probably more bish-
ops with degrees in canon law than there were bishops with degrees in
theology. There was much litigation; there were many arguments about
what the law was.
Another development of the thirteenth century is less often noted but
may be equally important for our story. While the canonists of the twelfth
century were conscious that their discipline was independent of what
today we call theology and what they called the study of the sacred page,
the two disciplines remained in contact with each other. Bolognese
canonists tried their hand at writing sentences, like the Parisian masters
of the sacred page. 6 1 Peter Lombard, the master of sentences whose book
became the textbook for theologians of the later middle ages, debated
with Gratian about constituent elements of marriage. 62 The canonists
were well aware that certain issues could not be treated in the public
courts of the Church, the external forum; but that did not stop them from
writing about issues that could only be treated in the internal forum, the
confessional. This close connection between the canonical discipline and
that of the theologians started to break down in the thirteenth century, for,
I would suggest, three reasons: First, keeping up with the decretals was a
full-time job, particularly if one also had to master Gratian and a consid-
erable amount of Roman law in order to make sense of them. Second, in
order to operate a legal system that had in all places only a partial juris-
diction, the canonic legal system had to interact with the secular legal
systems. The inevitable result was some secularization of the canon law.
Third, an accident of chronology: the greatest canonist of the thirteenth
century, Henricus de Segusio, the cardinal bishop of Ostia, wrote just be-
fore the explosion of theological learning at Paris that we associate with

61 E.g., Gandulphus of Bologna, Magistri GandulphiBononiensis Sententiarum Libri

Quatuor, ed. Johannes Wilhelm von Walter (Vindobonae et Vratislaviae: Aemilius Hain et
Soy., 1924); Rolandus, Die Sentenzen Rolands nachmals Papstes Alexander III, ed. Am-
brosius M. Gietl (Freiburg im Breisgau: Herder'sche Verlagshandlung, 1891) (the author
of this work was almost certainly not the future Alexander III, as Gietl thought; see
Brundage, CanonLaw, 224).
62 Peter Lombard, MagistriPetri Lombardi ParisiensisepiscopiSententiae in IV libris
distinctae(Grottaferrata: Editiones Collegii S. Bonaventurae ad Claras Aquas, 1981), 1.4,
tit. 27-28, 2:421-435.
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 19

Thomas Aquinas, Bonaventure, and Duns Scotus. 6 3 The greatest canon-

ist of the early fourteenth century was Johannes Andreae, a layman, who
seems to have had no formal theological training. 64 These two men re-
mained strongly influential in canonic learning of the fourteenth and fif-
teenth centuries; and their theology, like that of the rest of the canonists
of the period, remained largely a twelfth-century theology.
The vision of the Church on earth as encompassing all of society with
the pope at its head was destroyed first by the Babylonian captivity of the
papacy at Avignon in the fourteenth century, next by the schism and its
subsequent councils in the first half of the fifteenth century, and finally by
the reformation. 65 The last great ecclesiological theory of the canonists
was conciliarism, and conciliarism, ultimately, proved to be a disaster.
Whether in another time pope and council could have governed the
church jointly is hard to know, but the fifteenth century was not that time.
Conciliarism remains an interesting theory, however, since many of the
ideas of parliamentary democracy can be traced to it; but what works for
secular governments will not necessarily work for the Church.
Trent and its Aftermath.66 My third period begins with the council of
Trent in the sixteenth century when the lawyers went into eclipse; they
ceased to have the importance they had had in the affairs of the Church.
There are a number of ways of explaining that fact; that it happened is un-

63 For Hostiensis, who died in 1271, see Brundage, Canon Law, 214. Aquinas is
roughly his contemporary (d. 1274), but Hostiensis had completed the second version of
his Summa by 1253 and seems to have completed the first edition of his Lectura by 1265.
Thomas's commentary on the Sentences is usually dated to 1254-1257, and all his other
major works are later than that. ttienne Gilson, History of ChristianPhilosophy in the
MiddleAges (London: Sheed and Ward, 1955) 710. Bonaventure is Thomas's almost exact
contemporary (they died in the same year), and, like Thomas's, his commentary on the
Sentences can be dated to the 1250's (1250-1255); all his other works are later than that.
Id. 685. Scotus is a generation later and wrote nothing until all of these men were dead. Id.
454.
64 See Brundage, Canon Law, 216-217.
65 Good general treatments of canon law in this period are hard to come by. Perhaps
the best is Paul Ourliac and Henri Gilles, La pdriode post-classique:La problimatiquede
l'dpoque-Les sources, Histoire du droit et des institutions de l'Eglise en Occident, 13.1
(Paris: Cujas, 1971).
66 Good general introductions to canon law in this period may be found in Jean Bern-
hard and Francis Rapp, L'dpoque de la Rforme et du Concile de Trente, Histoire du droit
et des institutions de l'Eglise en Occident, 14 (Paris: Cujas, 1989) and Charles Lefebvre,
Marcel Pacaut, and Laurent Chevailler, L' poque moderne: Les sources du drit et la se-
conde centralizationromaine, Histoire du droit et des institutions de l'tglise en Occident,
15.1 (Paris: Cujas, 1976).
 THE JURIST

deniable. One explanation may lie in the fact that the conciliar movement
and the reformation had left the Church profoundly mistrustful of
lawyers. (That the lawyers were at least partially responsible for the con-
ciliar movement is certainly true; that they were responsible for the refor-
mation is, I think, an unfair charge. But some of the reformers thought so;
and one suspects that many who remained loyal to the papacy did so too.)
Another reason for the eclipse of lawyers in the Church can be related to
the politics and style of government of the counter-Reformation church,
which mimicked that of increasingly autarchical secular governments.
Only "approved authorities" were admitted in discussion, and creative
thought was stifled by removing authorities from the list of the approved.
Though the Spanish scholastics produced some original thinking on gen-
eral topics of justice and some quite remarkable politico-legal thought,
their work had relatively little effect on canon law. The canonists, to ex-
aggerate only slightly, were sent off to the back room and told to write reg-
ulations implementing the decrees of the council of Trent.67
The council of Trent said relatively little about the sexual morality of
the clergy. It reiterated, against the reformers, the by-now traditional dis-
cipline of celibacy for those in higher orders and for religious. 68 Perhaps
the reason that the council said relatively little on the topic is that the
Fifth Lateran Council in 1514 had condemned both clerical concubinage
and clerical homosexual sodomy in uncompromising terms and had
called for the ancient canons on the topic to be enforced.6 9

67 For these developments, and some qualifications, see Charles Donahue, "Why the
History of Canon Law Is Not Written," in The Selden Society Lectures 1952-2001 (Buf-
falo, NY: W. S. Hein,2003) 10-11. To the qualifications should be added a quite remark-
able work by the Spanish canonist and moral theologian, Tomds Sdnchez, Disputationum
de sancto matrimonii sacramento [tomus] (Venice: loannes Guerilius, 1614) [1st ed.
1602].
68 Trent (1563) sess. 24, Canones de sacramento matrimonii c.9, in COD, 755; cf.
idem, (1562) sess. 21, De reformatione c. 6; (1563) sess. 25, De reformationegenerali c.
14, in ibid., 730, 792-793. One innovation called for the removal of religious superiors
who failed to discipline regular clergy whose conduct caused scandal but who were ex-
empt from episcopal discipline. Idem, De regularibuset monialibus, c. 24, in idem., 780.
69 Lateran V (1514), sess. 9, Bulla [Leonis X1, Supernae dispositionisarbitrio, in
COD, 622-623. Professor Nelson Minnich suggested to me that the language of the bull
is perhaps even more remarkable for its extension of the prohibition against maintaining
concubines to lay people. (He also saved me from a serious dating error.) "Ut clerici prae-
sertim caste continenterque iuxta canonum praecepta vivant, statuimus ut contra facientes
acriter secundum canones puniantur. Si quis vero tam laicus, quam clericus, de crimine,
propter quod 'venit ira Dei in filios diffidentiae' [see note 57, above], convictus fuerit, poe-
nis per sacros canones aut ius civile respective impositis puniatur. Concubinarii autem,
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 21

Pius V (1566-72) stiffened the penalties for clerical homosexual

sodomy. Such clerics, apparently for the first offense, were to be de-
prived of their clerical status and turned over to the secular arm for fur-
ther punishment. 70 In the meantime, those implementing the Tridentine
decrees were at work. A decision of the Sacred Congregation of the
Council in 1726 was, so far as I am aware, the first time that a violation
of the sixth commandment with a child was held to be one of those sex- 71
ual offenses for which a cleric could be deprived of his clerical status.
The early modem period is, of course, an important period in the his-
tory of moral thought. 72 Here, the academic separation of the canonists
from the moral theologians had a profound effect on the former, and per-
haps on the latter. It is symptomatic that the greatest lawyer churchman
of the eighteenth century, Alphonsus Ligouri, is remembered, and rightly
remembered, as a moralist. He wrote virtually nothing about canon law.
With the French revolution and the subsequent secularization that ac-
companied it, the Church suffered a terrible blow. An objective historian
looking at the Church in 1815 would probably have predicted that she
would go the way of most other ancien rgime institutions, like a nobility
with plumed hats and swords. In fact she did not. 73 The Church revived re-

sive laici sive clerici fuerint, eorumdem canonum poenis multentur: neque superiorum to-
lerantia seu prava consuetudo, quae potius corruptela dicenda est, a multitudine peccan-
tium, aliave quaelibet excusatio eis aliquo modo suffragetur, sed iuxta iuris censuram se-
vere puniantur." The background for this extension is discussed in Brundage, Law, Sex,
514-517.
70 Pius V, Constitutio "Cum primum" 11 (1 Apr. 1566), in [Magnum bullarium ro-
manum, i.e.] Bullarium diplomatorum et privilegiorumSanctorum Romanorum Pontifi-
cuin 7:434, 437 (Rome: Hieronymus Mainardi, 1739); idem, Constitutio "Horrendum"
(30 Aug. 1568), in idem., 702-703.
71 Sacra Congregatio Concilii, Lavellana seu Romana (June 8, July 6, 1726), in The-
saurus resolutionum Sacrae Congregationis Concilii (Urbini: Hieronymus Mainardi,
1739) 3:iv, 334-336, 341 . This decision is cited as a source of canon 2359, 2 of the 1917
code. A careful reading of the case suggests that it did, indeed, involve minors (pueri, at
336); but it also involved alleged homosexual sodomy. It could be simply a vigorous en-
forcement of the constitutions of Pius V. It is, however, the only authority that the codifiers
of 1917 cite that supports their ruling that sexual offenses involving minors are particular-
ly heinous. Perhaps they read the case, as one might, as one in which the sodomy had not
been proven but the violation of the sixth commandment with a minor had been.
72 See John Mahoney, The Making of Moral Theology: A Study of the Roman Catholic
Tradition (New York: Oxford University Press, 1987).
73 For a specific study illustrating why it did not, see John W. Padberg, Colleges in
Controversy;the Jesuit Schools in Francefrom Revival to Suppression, 1815-1880 (Cam-
bridge, MA: Harvard University Press, 1969).
 THE JURIST

markably in the nineteenth century, and the First Vatican Council (1870)
was an illustration of that triumph. As such it was triumphalist.
The 1917 Code of Canon Law was the code of the First Vatican Coun-
cil, largely triumphalist, extraordinarily papalist, the summation of the
best of the legal efforts since Trent; but those efforts were not particularly
powerful even at their best.
So far as the sexual morality of the clergy is concerned, there was
much in the 1917 code on the topic. Canon 2359 summed up, with more
precision, the teaching of the older canons: First, clerics in higher orders
were to be warned to dismiss their concubines; if they failed to do so they
were to "compelled to leave their unlawful contubernium, be suspended
from the celebration of divine rites in order to repair the scandal, and de-
prived of the fruits of their office, benefice and dignity," in accordance
with a series of canons that laid out the process by which this was to
happen. Second, if they were guilty of having violated the sixth com-
mandment with a person under sixteen, or of having committed adultery,
violation of a virgin, bestiality, sodomy, pandering, or incest with a con-
sanguine or affine in the first degree, they were to be suspended from of-
fice, declared infamous, deprived of any office, benefice, dignity, or func-
tion that they might have, and in more serious cases deposed from the
clerical state. Third, other violations of the sixth commandment were to
be punished by appropriate penalties, up to and including deprivation
from office and benefice, particularly if the care of souls was involved.
Vatican H and the 1983 Code. The Second Vatican Council came at the
end of a long period of opening up to the modern world. Much of this
opening up had taken place among intellectuals, largely Europeans, to
some extent Americans. One of the complaints of these intellectuals was
that the Church had become too legalistic and that this legalism was
standing in the way of healthy development. For example, an Enchiri-
dion Liturgicum, 1500 pages of turgid Latin published in 1961, goes
through every liturgical pronouncement in the rubrics and in the 1917
code. 7 4 In many cases the question that it asks is whether failure to per-
form this rubric is simply a mortal sin or whether it also invalidates the
celebration.
The Second Vatican Council produced, among other things, a strong
streak of antinomianism in the church. A great biblical exegete, John

74 Polikarp Rad6, EnchiridionLiturgicum, 2 vols. (Rome: Herder, 1961).

 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 23

McKenzie, who was by no means a radical, wrote the following in The

Jurist in 1966:
The philosophical base of law, is the common good of the soci-
ety and the existence of an authority which is empowered to se-
cure the common good. Law expresses the will of this authority,
and it implies a judgment made by authority concerning means
apt to secure the common good. Law is not directed to the indi-
vidual personal good except in so far as the individual personal
good depends on the common good .... The law is not directed
to the improvement of the person ....
As long as law is confined to the business of the Church and as
long as the Church has business to manage, there appears no con-
vincing reason at the moment why legal processes should not be
employed. But observe that I speak of the business of the Church.
Law, it seems, should not touch the Christian life of the Church;
here it is an intrusion of a secular factor. The church is empowered
to exercise leadership in the Christian life, but this is not a leader-
ship of the law. It is leadership of another type.... Only when
something other than the true mission of the Church is the objec-
tive are we likely to turn to means which are quite suitable to these
objectives; and I mean the use of power. Power is profane and
adapted to profane purposes; but why should the Church have
profane purposes? Order can be achieved by other means than
law; and in this age of self-examination of the Church we can ask
whether the failures of the Church may not be connected with our
75
failures to achieve a truly ecclesiastical order.
Of course, an effort to achieve "a truly ecclesiastical order" through
law did happen, and that effort is reflected in the 1983 code. It is an in-
teresting, but also a curious document. Let me briefly try to illustrate this;
and in doing so, I will, to some extent, take off my historian's hat and put
on that of a lawyer:
The 1983 code attempts to express the supremacy of the pope as it was
defined by the First Vatican Council and the collegiality of the bishops as
it was defined by the Second Vatican Council in the dogmatic constitu-
tion Lumen gentium of 1964.76 If we look at it from the point of view of

75 John L. McKenzie, "Law in the New Testament," The Jurist 26 (1966) 177-180.
76 1983 code, cc. 330, 331, 333, 336; Vatican II, dogmatic constitution Lumen gen-
tium, November 21, 1964) in COD, 849-898 [Lumen gentium].
 THE JURIST

secular political and legal theory, we immediately ask the question: what
does this mean about sovereignty? The answer seems to be given in
canon 331: the Roman Pontiff has supreme, full, immediate, and univer-
sal ordinary power in the Church, and he can always freely exercise this
power. 77 But if that is so what is the role, first, of the diocesan bishop
whose "proper, ordinary, and immediate" power does not seem to be de-
rived from the pope, or, second, of the college of bishops which is "also
the subject of supreme and full power over the universal Church" but
which cannot78operate in an ecumenical council without being authorized
by the pope.
The quoted language about the bishops and the college of bishops
comes from Lumen gentium and not from the code. 79 The code, other
than mentioning the synod of bishops, is unhelpful: "It belongs to the
Roman pontiff to select and promote, according to the needs of the
Church, ways in which the College of Bishops can exercise
80
its office in
respect of the universal Church in a collegial manner."
Maybe the problem is the analogy to sovereignty. Perhaps we should
be asking about the functions of power in the Church. In secular society
it is relatively clear that power is to be exercised toward a group of goals,
some of which are generally accepted, like maintenance of public order,
and some of which are the subject of political debate, like making wel-
fare payments. Throughout the West, the choice of the goals and their im-
plementation are both subject to the approval of popularly-elected leg-
islative bodies.
When church officials say that Americans do not realize that the
Church is not a democracy, they are doing more than expressing a frus-
tration with the American way of dealing with bureaucrats (although that
is there too). They are also reflecting the fact that the exercise of power
within the Church is not directed toward goals that are neither legisla-
tively determined, nor determined by the pope. They are determined, as
the Church sees it, by her founder. Looking at it from the outside, we
might say that a massive process of acculturation ensures that the ulti-

77 1983 code, c. 331.

78 Lumen gentium 27, 22, in COD, 871; 866-867
79 Ibid.
80 1983 code, c. 337, 3. Lumen gentium but not the code also makes clear that "col-
legial" here is to be taken in a sense broader than its normal civil-law meaning of a group
that has committed its powers to one person to act in its stead and to bind the whole.
Lumen gentium 27, in COD, 871.
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 25

mate goals of this organization are not likely to change radically in any
short period of time, that its commitment to a set of abstract propositions
about creed, cult, and code has remained remarkably constant over the
centuries, and that authority is at least perceived as being necessary for
two quite distinct purposes: (1) to administer the apparatus that teaches
the creed, performs the cult, and, at least to some extent, enforces the
code; and (2) to preserve the unity that the organization holds dear, par-
ticularly when changes in the creed, cult, and code become necessary.
Looking at it from the point of view of those inside the Church, au-
thority is a form of ministry. The issue is whether it is possible to express
the exercise of authority as ministry in a way that at once captures its dif-
ference from the exercise of authority in secular law and at the same time
allows the organization to function in this world. Perhaps another way of
putting it is to look at the theme of unity in diversity highlighted in
Lumen gentium and to ask if there is a way to express authority in such a
way that it achieves unity without crushing the diversity.
The codifiers took Lumen gentium seriously. It is reflected in the vo-
cabulary of the code and in the order of the material. In place of the over-
whelming emphasis on hierarchy that we find in the 1917 code, we begin
81
with all of Christ's faithful, followed by specific canons about the laity.
Most of the theology of Lumen gentium, however, finds no reflection in
the code. The sacramental nature of the church, the mystical body, the
call to holiness, the pilgrim church, all powerful ideas of Lumen gentium,
are either absent or submerged. To return to the secular analogy: over the
course of centuries lawyers have found ways to express the constitutions
of secular states in legal form. The language we use is of rights, duties,
powers, privileges, and immunities. We can define interpersonal legal re-
lations with some precision; we can define the role of organs of govern-
ment with some precision. What lawyers do not have is a ready-made
mold into which to fit an organization that describes itself as the "people
of God," a pilgrim people called to holiness, and that defines its mem-
bership as a communion. We read of the prophetic, priestly, and kingly
function of the people of God in canon 204, and we wonder what legal
meaning that could have.
On the question of the sexual morality of the clergy, canon 1395 of the
1983 code is the parallel of canon 2359 of the 1917 code. The three pro-
visions of canon 2359 have become two: first, discipline, ultimately lead-

81 1983 code, cc. 204-223,224-231.

 THE JURIST

ing to possible degradation, for clergy whose sexual misconduct is habit-

ual and has become scandalous, and discipline, including possible degra-
dation, for rape, public commission of a sexual offense, or violation of
the sixth commandment with a minor. There seems to be a movement
here away from the 1917 code's emphasis on the nature of the act in
terms of traditional natural-law morality to an emphasis either on scan-
dal or on harm to the victim. Both sections of canon 1395 of the 1983
code emphasize scandal ( 1, "a cleric who lives in concubinage or a
cleric who remains in another external sin against the sixth command-
ment of the Decalogue which produces scandal;" 2, "a cleric who has
committed an offense against the sixth commandment of the Deca-
logue... publicly"). Adultery, violation of a virgin, bestiality, sodomy,
pandering, and incest are no longer mentioned as sexual offenses, the
single commission of which can lead to deposition or degradation; but
violation of the sixth commandment with a minor is retained, and
forcible rape is added to the list. It would seem that the mind of the leg-
islator in 1983 was already focused quite sharply on the very thing that
happened in so many of our dioceses.
Conclusion.Let me try to sum this all up, and here I will depart from
proper historical method entirely. Our search into the history revealed
that law has played a very different role in the life of the Church at dif-
ferent times in her history, but there has always been something that pre-
vented it from playing quite the role that it would have to play today in
order to function in the modem world.
In the period of the apostolic church, law was associated with a partic-
ular movement that was probably the dominant movement within Ju-
daism. Christianity reacted to that movement. The separation of law and
morals, something that had a profound effect on the history of canon law,
and, indeed, on western law generally, can probably be traced back to the
period when the predominant non-Jewish intellectual influences on
Christianity were Greek. The first examples of a peculiarly ecclesiastical
law are not called nomos, the Greek word for law and also the word for
'Torah' in the Septuagint; they are called kanon, a curious word, the base
meaning of which is reed or rod.82 This is not, I think, to suggest that they

82 Alphonse van Hove, Prolegomenaad Codicem luris Canonici,2d ed. (Malines: H.

Dessain, 1945) 39-41. Van Hove's suggestion that the word was chosen in order to distin-
guish the wavcvEq, v6got of the church from the v6got of the emperor cannot be ex-
cluded, because the term is found in sources compiled for most part after the Edict of Tol-
eration (c. 313), even when they are referring to earlier materials. The ubiquity of the term,
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 27

are any less binding, but to suggest rather that they are neither the Judaic
law by which, in some sense, the observant Jew believed that he was jus-
tified, nor the nomos of the Greeks, a word redolent of overarching philo-
sophical ideas.
By the eleventh century the number of canons had grown to the point
where they could be used in a full-scale debate about ecclesiology. But
the issue in this debate was not so much about the structure of the Church
as it was about what we would call today church and state relations. It is
not until the twelfth century that we find in Gratian a full-scale ecclesiol-
ogy expressed in law. It is an ecclesiology full of tensions between the
spiritual domain of the Church and her visible structure, but the tensions
are recognized and resolutions are proposed. Why can we not go back to
Gratian's ecclesiology today? There are many reasons; I will offer only
one: Gratian's vision of the Church is of a juridical society that incorpo-
rates the secular world; it has a role for secular governance to play. The
Church for Gratian is a complete society here and now. She, of course,
has eschatological yearnings; and Gratian constantly has to remind us
that in the eyes of God things may not be the same as they are in the eyes
of human beings. But despite the fact that he was not a papal monarchist
in the way that some of his contemporaries were, he, nonetheless, as-
sumes a role for the Church in the world that is simply not the role of the
Church in the world today.
After the council of Trent the church withdrew into herself. She still
retained the idea that she incorporated the secular world, though the
range of her geographic scope was considerably limited; and even within
the area that was still Catholic, thinkers began to talk in terms of the di-
rect power of princes and the indirect power of the pope. The French rev-
olution and the Italian national movement in the nineteenth century had
the further effect of turning the Church inward. The law of the Church
became basically an administrative law, parceling out powers and func-
tions, largely among clerics, with papal power increasingly exercised by
the Vatican bureaucracy, a body with an ill-defined function in ecclesiol-
ogy. This administrative law was characterized by extensive, detailed,

however, suggests that it dates from a period before anyone might have confused the law
of the Church and that of the emperor. For some of the ideas expressed in the text, see
Justin Taylor, "Canon Law in the Age of the Fathers," in Jordan F. Hite, Gennaro J. Sesto,
and Daniel J. Ward, Readings, Cases, Materialsin Canon Law: A Textbook for Ministeri-
al Students (Collegeville, Minn.: Liturgical Press, 1980) 36-37 (originally published in
AustralasianCatholic Record 54/2 [April 1977] 151-168 ).
 THE JURIST

top-down regulation. The ecclesiology of Vatican I was only a partial ec-

clesiology, focusing as it did only on the pope. Both the ecclesiology of
Vatican I and that of the 1917 code was partial in another sense as well.
It focused only on the visible structures of the Church in this world. It
was the function of Vatican II to redress the balance-to emphasize the
reality of the Church beyond her visible structures in this world and to
emphasize the role of the bishops and of the laity not so much as coun-
terbalances but as complements to the pope. The principle of subsidiar-
ity, that a matter should be dealt with at the lowest possible level of the
hierarchy that was competent to handle it, was much discussed (though
the principle itself antedates the council).
Can law catch up with these developments? Some would say that it
cannot. My own vision, however, would give law a greater role to play
than John McKenzie gives it. This is not to deny that much has been done
in the name of canon law that is incompatible not only with a Vatican II
view of the Church but also with a Pauline one and in many respects with
Gratian's. But I think McKenzie is demeaning law when he confines law
to its Austinian dimensions of a command of a sovereign backed up by
force, even when he adds the more Thomistic element of a judgment "or-
dained for the common good.' 83 Law can deal with the interior person.
The canonists of the twelfth century were the first lawyers in the west
after the fall of Rome to show in any kind of systematic way how it was
possible for a legal system to express principles about the mitigation or
aggravation of responsibility for criminal and delictual acts, principles84
that ultimately came to be the elements of mens rea of our criminal law.
Law and legalism are not the same thing, and if the Church has had too
much of the latter, she may not have had enough of the former.
Much that is going on the Church today is a process of groping toward
institutions that meet the current needs of the body better than those that
we have inherited from the past. In the long run, much of this is probably
going to end up seeming pretty silly. I do not share the fascination of the
new code and of almost every practicing canonist with the multiplication
of committees. But I do not have an easy answer for an organization that
is largely responsible for developing the notion of sovereignty in western
political thought when it asks how to develop an idea of authority as ser-
vice. Nor do I have an easy answer for an organization that asks me to

83 Above, text following note 77.

84 See Stephan Kuttner, KanonistischeSchuldlehre von Gratianbis aufdie Dekretalen
Gregors IX, Studi e Testi, 64 (Vatican City: Biblioteca Apostolica Vaticana, 1935).
 REFLECTIONS ON THE CHURCH AND THE LAW OVER THE CENTURIES 29

write its constitution and tells me that it includes within its membership
a very large number of people who are dead and a large number of peo-
ple who do not know that they belong. I do know, however, that if a
lawyer writes a constitution for such an organization and makes it look as
if authority in that organization meant the same thing as it does in secu-
lar law, or that only those who are living and say that they belong to the
organization are to be considered members, that lawyer has not fully
done his or her job. I will not say that this is what the codifiers did, but
they came perilously close.
This has ended up being something of a sermon; so let me conclude
with a call to action. The first thing we learn in law school is that law is
constantly in a process of becoming; relatively little in law is fixed; and
none of the interesting questions is fixed. Most canonists today are aware
of that, but very few non-canonists in the church are aware of it. The
canon law that is taught in seminaries is still, in many places, like the sec-
ular law taught in business schools-the pastor's handy answer to trou-
blesome questions. The role of law in any organization is to tie together
its day-to-day workings with its highest aspirations, to determine the var-
ious levels of authority both personal and ideological, to separate the
ought from the may, the ought not from the may not. 85 There is much of
that kind of thinking that needs to be done in the Church today, and the
talent and training are spread very thin. The observant Jew who wants to
become more deeply involved in Judaism reads the Talmud in a group
with other observant Jews. I am not suggesting that we ought to read the
Code of Canon Law in the same way; that would be like trying to get
spiritual direction from the Internal Revenue Code. Nor am I suggesting
that every Catholic ought to do this. What I am suggesting is that
Catholic lawyers ought to read the Code of Canon Law, the bible, the fa-

85 This is to argue, of course, that law necessarily has a moral content and that part of
that moral content is to show, in a society like ours that makes a sharp distinction between
law and morality, where that dividing line lies. There are those who would argue that law
has no moral content, or at least no necessary moral content; and arguing with such peo-
ple would take us very far afield. Perhaps we can agree, however, that a religiouslaw nec-
essarily has a moral content. It is interesting that religious legal systems that do not make
a sharp distinction between law and morals nonetheless distinguish between those aspects
of the legal/moral system that can be subject to outside enforcement and those that cannot.
A distinction along these lines is clearly present in Jewish law, and, I believe, in Islamic
law as well. See Menachem Elon, "Introduction," in The Principles of Jewish Law, ed.
Menachem Elon (Jerusalem: Encyclopedia Judaica, 1975) 8-9; cf. Frank E. Vogel, Islam-
ic Law andLegal System: Studies ofSaudiArabia,Studies in Islamic Law and Society No.
8 (Boston: Brill, 2000).
 THE JURIST

thers, and the best of current writing on moral and pastoral theology and
ecclesiology together, that they ought to talk about it in groups and write
about it. Perhaps the time has come86 in the life of the Church for a little
more nomos and a little less kanon.
Obviously, this program requires much study. My thesis is that the
Church today is ill-served by the role that her canon law has played in the
past in the development of secular law. What she needs are new models,
and those models are likely to come only in part from the Western legal
tradition. Models are there, however, in the Judaic, Islamic, and Hindu
traditions. Other models may show us how various religions manage to
do without anything that they call law; they may even show us why it is
that some religions develop a genuinely religious law and some do not.
There are relatively few places that have the scholarly resources to en-
gage in such study. Could it be that Catholic University of America ought
to establish a Center for the Study of Religious Legal Systems?
Finally, the current mess with which we began. I promised a vision
that would, in some sense, reconcile those who argue that the cause of the
current problem is the failure of American Catholics to accept the teach-
ing of Humanae vitae, and those who argue that the cause of the crisis is
the failure of the hierarchy fully to implement the reforms of the Second
Vatican Council, particularly with regard to the role of the laity in the
Church. We have said much about the second issue, less about the first,
because we have not spoken at length about the various ways in which
canon law has reflected natural law and the moral tradition. But the story
of the separation of the lawyers from the moralists from at least the time
of Trent, and perhaps even from the thirteenth century, is a story of what
happens when law, or at least religious law, loses its connection with
moral thought. Kanon may or may not have an explicit norm about the
sexual abuse of children. (As we have seen, it turns out that the Code of
Canon Law does have such a norm.) But whether it does or not, nomos
certainly has an explicit norm about the sexual abuse of children. Once
again, perhaps the time has come in the life of the Church for a little more
nomos and a little less kanon.

86 For an introduction to the kind of work that I thinking about, see Myriam Wijlens,
Theology and Canon Law: the Theories of Klaus Morsdorf and Eugenio Corecco (Lan-
ham, Md.: University Press of America, 1992); Ladislas Orsy, Theology and Canon Law:
New Horizonsfor Legislation and Interpretation (Collegeville, Minn.: Liturgical Press,
1992).