Canon Law and the Human Person

John J. Coughlin

doi:10.2307/3649158

Canon Law and the Human Person

Published online by Cambridge University Press: 24 April 2015

John J. Coughlin

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This article explores the unity of law and theology in the 1983 Code of Canon Law [hereinafter CIC-1983]. The unity has remained critical since canon law emerged in the ancient Church. From the origins of the primitive Christian communities through the patristic era, the Church manifested a tension between charism and office, spirit and law. The medieval canonists achieved a great synthesis of the reason of law and faith of theology. The unified theory helped to form the basis of the Western legal tradition. The Reformation focus on sola fide (faith alone) tended to sever the unity. With the Enlightenment, reason was declared independent from the unproven dogma of faith. Modern Western legal theory developed in accord with Enlightenment thought. As a result of canon law's function in the life of the Church, the continuing issue of the unity has produced two interrelated principles. Theology without law leaves the ecclesiastical community bereft of an ordered life. Law without theological meaning surrenders its moral persuasiveness and deteriorates into rigid legalism.

Vatican II required a new universal law for the Church that avoided the pitfalls of both antinomianism and legalism. The Preparatory Commission for the CIC-1983 described canon law as a “sacred symbol.” When he promulgated the new Code, His Holiness John Paul II termed the legislation “the final document of Vatican II.” Affirming the unity of law and theology, the Supreme Legislator has drawn attention to the concept of “theological anthropology.” The phrase signifies the endeavor to uncover the fundamental elements of what it means to be human. In exploring the unity of law and theology, this article focuses on the relationship between canon law and theological anthropology. While obviously not intended as a repudiation of mainstream legal theory, the article also suggests that the unity may offer comparative insight to the secularity of the modern project.

Type: Article
Information: Journal of Law and Religion , Volume 19 , Issue 1 , 2004 , pp. 1 - 58

DOI: https://doi.org/10.2307/3649158 [Opens in a new window]
Copyright: Copyright © Center for the Study of Law and Religion at Emory University 2003

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References

1. Codex Iuris Canonici auctoritate Ioannis Pauli Pp. II promulgatus (Die 25 m. ianuarii a. 1983), 75 Acta Apostolicae Sedis [hereinafter AAS] II, 1–317 (1983). Canon law attempts to set the optimal conditions for the social order of the ecclesiastical community and its individual members. Ioannes Paulus Pp. II, “Constitutio Apostolica Sacrae Disciplinae Leges” (Die 25 m. ianuarii a. 1983), 75 AAS II, xi (1983)Google Scholar PubMed (Canon law “looks towards the achievement of order in the ecclesial society, such that while attributing a primacy to love, grace and charisms, it facilitates at the same time an orderly development in the life both of the ecclesial society and of the individual persons who belong to it.”). English translations of the CIC-1983 and the Apostolic Constitution Sacrae Disciplinae Leges are taken from Code of Canon Law Annotated: Latin-English Edition of the Code of Canon Law and English-Language Translation of the 5th Spanish-Language Edition of the Commentary Prepared under the Responsibility of the Instituto Martín de Azpilcueta (Caparros, Ernest, Thériault, Michel & Thorn, Jean eds., Wilson & Lafleur Limitée 1993)Google Scholar.

2. Corecco, Eugenio, The Theology of Canon Law: A Methodological Question 4 (Turvasi, Francesco trans., Duquesne U. Press 1992)Google Scholar (discussing canon law's historical development and concluding that “[t]he problem of the unity of law has become central to the Christian philosophy of law and to the theology of canon law.”).

3. This is not to suggest that the tension was unhealthy or has not continued to be an important factor in the life of the Church to the present time. Congar, Yves, I Believe in the Holy Spirit vol. 2, 11 (Smith, David trans., Seabury Press 1983)Google Scholar (discussing the tension between charism and institution); de Lubac, Henri, The Splendour of the Church 85–125 (Mason, Michael trans., Paulist Press 1956)Google Scholar (discussing the tension between the visible and invisible aspects of the Church); Kuttner, Stephan, Some Considerations on the Role of Secular Law and Institutions in the History of Canon Law, in Studies in the History of Medieval Canon Law 351, 356–357 (Variorum 1990)Google Scholar (observing that, while the medievals first developed a systematic approach to canon law, the primitive and ancient Church from its institution was both a spiritual communion and corporate society with the existence of a sacramental and jurisdictional law).

4. Tierney, Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150–1625, at 343 (Scholars Press 1997)Google Scholar (“The idea of natural rights grew up… in a religious culture that supplemented rational argumentation about human nature with a faith in which humans were seen as children of a caring God.”); and Helmholz, R.H., The Spirit of Classical Canon Law 398 (U. Ga. Press 1996)Google Scholar (medieval canon law “was designed to guide Christians toward right conduct as well as to establish an objective order with definite legal consequences”).

5. Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition 85–254 (Harv. U. Press 1983)Google Scholar (describing how the eleventh and twelfth centuries' “renaissance” in the study of law lead to a system of canon law that formed the basis of the Western legal tradition); Brundage, James A., Medieval Canon Law 4 (Longman 1995)Google Scholar (noting that canonical private and public law contributed to the most basic institutions of modern constitutional government); and Colish, Marcia L., Medieval Foundations of the Western Intellectual Tradition 400–1400 at 326–351 (Yale U. Press 1997)Google Scholar (discussing the many ways in which medieval culture and law contributed to the economic and political theory of the Western intellectual tradition).

6. Corecco, supra n. 2, at 85 (describing Luther's doctrine of the two separate kingdoms, one of which is ruled by faith and the other by reason). From the Reformation, a polemic developed concerning the nature of the early Church. Reflective of the polemic, the German historian Rudolph Sohm had advanced the thesis that prior to the twelfth century the Church was a theological and spiritual rather than legal and juridic community. However, Stephan Kuttner observed: “When Sohm failed to see the operation of the ‘legal’ element in the earlier canon law, this is due in part to his denial… of the existence of a sacramental and a jurisdictional aspect in the law of the primitive and the ancient Church.” Kuttner, supra n. 3, at 356–357.

7. Since the time of the Enlightenment, religion and faith have been increasingly seen as private matters best retired from the realm of public discourse. Tracy, David, Blessed Rage for Order: The New Pluralism in Theology 4–10 (Seabury Press 1979)Google Scholar (describing the process of “secularization” of Western society beginning with “the Enlightenment's demand for freedom from oppressive authorities and freedom for autonomous, critical, rational thought”); and Gadamer, Hans-Georg, Truth and Method 241 (Seabury Press 1982)Google Scholar (discussing the Enlightenment critique of the traditional assumptions based on Christianity and the Bible).

8. This is consistent with the thought of Walter Ullmann, who argues that the view of individuals with autonomous and individual rights was an Enlightenment idea, foreign to the Middle Ages. In contrast, Brian Tierney suggests that the medieval canon law contains the origins of individual rights theory. Helmholz, supra n. 4, at 306 (describing the respective positions of Ullmann and Tierney); and Finnis, John, Aquinas: Moral, Political, and Legal Theory 133–138 (Oxford U. Press 1998)Google Scholar (discussing the meanings of ius in the medieval theologian Thomas Aquinas). While the discussion is important, the point above is that modern Western law developed primarily in accord with Enlightenment political theory. The empirical approach of thinkers such as Locke and Hume did not depend on the traditional religious sources and beliefs. See generally Copleston, Frederick, A History of Philosophy: Modern Philosophy: From the French Enlightenment to Kant vol. 6, 1–4 (Image Books 1994)Google Scholar (discussing the empiricism of French and English eighteenth-century thought).

9. Örsy, Ladislas, Theology and Canon Law: New Horizons for Legislation and Interpretation 170 (Liturgical Press 1992)Google Scholar (describing the “organic connection” between canon law and theology as an “ontological fact”).

10. Pontifical Commission for the Revision of the Code of Canon Law, 11 Communicatees 67, 79 (1979)Google Scholar (“In the mystery of the Church the law has the function of a sacred symbol that signifies and promotes the spiritual life of Christians.”).

11. Paolo, Giovanni II, Il Diritto Canonico inserisce il Concilio nella nostra vita, 15 Communicationes 128 (1983)Google Scholar (“[u]ltimo documento conciliare”).

12. Paulus, Ioannes Pp. II, “Allocutiones: I. Ad Rotae Romanae Auditores coram admissos (Die 5 m. februarii a. 1987),” 79 AAS 1453, 1454–1458 (1987)Google Scholar (stating that canon law must flow from the essential elements of theological anthropology); “Allocutiones: XII, Ad Romanae Rotae Auditores simul cum officialibus et advocatis coram admissos, anno forensi ineunte (Die 25 m. ianuarii a. 1988),” 80 AAS 1178, 1180–1181 (1988)Google Scholar (urging that canon law should reflect an “integrated concept of the person” in accord with theological anthropology, which strives to enhance both natural and transcendent values); Barrett, Richard, The Philosophical Presuppositions of the Code, 89 Periodica 491, 522–523 (2000)Google Scholar (observing that Pope John Paul's focus on theological anthropology offers the possibility of a coherent foundation and starting point for canonical discussion); and Ghirlanda, Gianfranco, Il diritto nella Chiesa mistero di comunione: Compendio di Diritto Ecclesiale 15–29 (Cinisello Balsamo 1990)Google Scholar (describing the “anthropological foundation” of canon law).

13. Theological anthropology adopted the methodological tum to the subject. Man (Anthropology) in Encyclopedia of Theology 880 (Rahner, Karl ed., Seabury Press 1975)Google Scholar (theological anthropology is “man's explanation of himself”).

14. E.g. de Lubac, Henri, Catholicism: Christ and the Common Destiny of Man 326 (Sheppard, Lancelot & Englund, Elizabeth trans., Ignatius Press 1988)Google Scholar (suggesting that the social character and unitary nature of Catholic dogma does not diminish but enhances the human person); Congar, supra n. 3, at 66 (recalling his thought on the eve of Vatican II that “Christian anthropology includes a whole theology of man's image being reshaped”); Rahner, Karl, Foundations of Christian Faith: An Introduction to the Idea of Christianity 24–115 (Dych, William V. trans., Seabury Press 1978)Google Scholar (focusing on the experience of the human person as essential to communicating revelation in the modern world); and von Balthasar, Hans Urs, A Theological Anthropology 43–102 (Sheed & Ward 1967)Google Scholar (suggesting that the language of God is perfectly expressed in the “human wholeness” of Christ). This is not to suggest that these twentieth-century theologians were consciously working in concert as part of a larger systematic project. To be sure, they were writing from diverse perspectives, and there are significant differences in their thought. Some of the theological contributors to the endeavor found that their work was met with censure from ecclesiastical authority. A shift transpired at Vatican II (1963–65), when the 1965 document Gaudium et Spes: Pastoral Constitution on the Church in the Modern World, in Vatican Council II: The Conciliar and Post Conciliar Documents 903, 913–914, 917–918 & 922–924 (Flannery, Austin ed., Liturgical Press 1992)Google Scholar, incorporated the turn to the human subject. Fouilloux, Étienne, The Antepreparatory Phase: The Slow Emergence from Inertia (January, 1959–October, 1962), in History of Vatican II vol. 1, 72–132 (Alberigo, Giuseppe & Komonchak, Joseph A. eds., Orbis Books 1995)Google Scholar (discussing the influence of theological experts which set the stage for the theological renewal at Vatican II); and Martina, Giacomo, The Historical Context in Which the Idea of a New Ecumenical Council Was Born, in Vatican II: Assessment and Perspectives Twenty-Five Years After (1962–1987) vol. 1, 3 (Latourelle, René ed., Paulist Press 1988)Google Scholar (describing the historical evolution of the theological thought and official reaction in the years leading to Vatican II). This shift was solidified with the papacy of John Paul II, and theological anthropology now constitutes a standard feature of Catholic thought.

15. The new form of Catholic thought was rooted in the tradition especially in the work of St. Thomas Aquinas. Aquinas, Thomas, Summa Theologica I-II, 109, 1 & 2 (Fathers of the English Dominican Province trans., Benzinger Bros. 1947)Google Scholar [hereinafter Summa Theologica] (discussing the relationship between the human soul and body); Summa Theologica I, 76, 89 (discussing the unity of the human being as body and soul); and Gilson, Etienne, The Christian Philosophy of St. Thomas Aquinas 196 (Shook, L.K. trans., Random House 1956)Google Scholar (“The union of soul and body is so close that the soul compenetrates or envelops the body to the point of being wholly present in each of its parts.”). St. Thomas built his theological and philosophical system on Aristotle's cosmology and, on the basis of these assumptions, he articulated a theory of the human person. Modern philosophy and science called into question many of the ancient and medieval assumptions. In response, twentieth-century theological anthropology was an attempt to retrieve the validity of the faith experience by adopting the modern starting point of the human subject. Catholic philosophical thought also contributed to the new understanding of the human person. E.g. Wojtyla, Karol, The Acting Person 134–135 (Potocki, Andrzej trans., D. Reidel Publg. Co. 1979)CrossRef Google Scholar (elucidating the “specifically human” from a phenomenological perspective); Lonergan, Bernard J.F., Method In Theology 13–20 (Seabury Press 1979)Google Scholar (describing a “transcendental method” as a basic pattern of human consciousness and knowing); and Gaudium et Spes, supra n. 14, at 914 (“Man, though made of body and soul, is a unity.”).

16. Finnis, supra n. 8, at 177–180 (discussing the root of human dignity as the dynamic unity of body and soul in the human being). Theological anthropology endeavors to avoid the pitfalls of determinism, empiricism and idealism. Biological, social and economic determinists afford an abbreviated understanding of human freedom. In the tradition of Descartes, empiricist or analytical philosophers draw a sharp distinction between body (external world) and cognition (interior world). In contrast, idealists adopt the Kantian approach of abstract categories. From the perspective of Catholic thought, these various approaches fail to express the full possibilities for the human person. Wojtyla, supra n. 15, at vii (stating that the author's approach runs contrary to the trends of modern philosophy since Descartes).

17. St. Thomas distinguished between the intellect and will as the powers of cognition and appetite in the human soul. Summa Theologica, supra n. 15, at I, 77, 1 & 5. In comparison, Duns Scotus thought the distinction not to be real but only formal. Scotus apparently wanted to avoid a faculty psychology. Cross, Richard, Duns Scotus 83–84 (Oxford U. Press 1999)Google Scholar. Consistent with the Scotistic caution, the ideas of intellect and will are considered here as traditional analytical categories, and obviously not intended as exhaustive descriptions of humanness. Rahner, supra n. 14, at 32 (discussing the horizon for the human person as spirit and flesh); and Gilson, supra n. 15, at 207–248 (describing the human faculties of intellect and will as moving the person toward beatitude, the supreme good and transcendental last end).

18. Lonergan, supra n. 15, at 53 (“Progress proceeds from originating value, from subjects being their true selves by observing the transcendental precepts, Be attentive, Be intelligent, Be reasonable, Be responsible.”).

19. Wojtyla, supra n. 15, at 134–135 (describing the act of the will as the person's response to the appeal of values).

20. In Thomistic thought, the will is in reason (voluntas est in ratione). Copleston, Frederick C., Aquinas 212 (Penguin Books 1955)Google Scholar (In Thomistic thought, a nature, such as “human nature,” is a way of being which does not possess its state of accomplishment instantly but is designed to reach it through progression.).

21. Lonergan, supra n. 15, at 104 (“Man achieves authenticity in self-transcendence.”). A distinction may be drawn between individualism and personalism; and Wojtyla, supra n. 15, at 264–267, 272–273 (describing the distinction between individualism and personalism). According to Wojtyla, “[i]ndividualism sees in the individual the supreme and fundamental good….” Id. at 273. While individualism denotes that the human person acts primarily to advance self-interest, personalism refers to the constitution of the human person through acting in solidarity with others. Personalism posits the human person as created not for self-interest but for self-transcendence. See generally Mounier, Emmanuel, Personalism xv–xxviii (Mairet, Philip trans., Routledge & Paul 1952)Google Scholar (describing the origins and characteristics of modern personalist thought).

22. Von Balthasar, supra n. 14, at 155–176 (discussing the significance of salvation history for theological anthropology).

23. Gaudium et Spes, supra n. 14, at 903, 913–914, 917–918 & 922–924 (delineating the Biblical context of theological anthropology); and Rulla, Luigi M., Imoda, Franco, & Ridick, Joyce, Anthropology of the Christian Vocation: Conciliar and Postconciliar Aspects, in Vatican II: Assesment and Perspectives Twenty-Five Years After (1962–1987) vol. 2, 402 (Latourelle, René ed., Paulist Press 1988)Google Scholar (summarizing the Biblical anthropology present in the Vatican II document Gaudium et Spes).

24. Gaudium et Spes, supra n. 14, at 913–914 (recalling the Biblical doctrine that the human person is created in the image of God); and Ratzinger, Joseph, The Dignity of the Human Person, in 5 Commentary on the Documents of Vatican II 121–122 (Vorgrimler, Herbert ed., Herder & Herder 1969)Google Scholar (The doctrine of humanity in God's image is not only a doctrine of creation but must be understood in light of Christology.).

25. Gaudium et Spes, supra n. 14, at 914; von Balthasar, Hans Urs, The Christian State of Life 91–92, n. 21 (McCarthy, Mary Frances trans., Ignatius Press 1983)Google Scholar (contrary to the Aristoletelian approach of St. Thomas Aquinas, St. Bonaventure correctly considers the natural goodness of the original state of humanity that subsequently takes on lapsed nature); and Rahner, Karl, The Theological Concept of Concupiscentia, in Theological Investigations vol. 1, 347 (Ernst, Cornelius trans., Helicon Press 1974)Google Scholar (in theological meaning, the technical term “concupiscence” refers to the fact that the human person, after the Fall, no longer possesses a perfect control of the drives and emotions).

26. Gaudium et Spes, supra n. 14, at 914 (describing the human person as divided between a “high calling” and “deep misery” as a result of original sin); and von Balthasar, supra n. 14, at 43–72 (discussing the inherent conflict and perfectibility of the human person).

27. Gaudium et Spes, supra n. 14, at 922–924 (teaching that Christ is the “new man”); and Summa Theologica, supra n. 15, at I-I, 95 (This human nature was understood as created to be good, then deformed by original sin, and redeemed by Christ who took on human nature and so perfected it.). The Franciscan school posited that even without the original sin, the Word would still have become Incarnate, not to redeem, but to perfect humanity. Schillebeeckx, Edward, Christ the Sacrament of the Encounter with God 13–20 (Sheed & Ward 1963)Google Scholar (describing the integration of the fullness of Christ's humanity and divinity as the source of Redemption); and Karl Rahner, supra n. 14, at 212–321 (discussing the Incarnation in relation to the humanity and divinity of Christ).

28. Gaudium et Spes, supra n. 14, at 938 (placing human action within the context of eschatology); Ratzinger, Joseph, Principles of Catholic Theology: Building Stones for a Fundamental Theology 171–190 (McCarthy, Mary Frances trans., Ignatius Press 1987)Google Scholar (discussing the importance of one's concept of history for a correct understanding of Catholic eschatology); and Gilson, supra n. 15, at 351–356 (The philosophy of St. Thomas “continues nature into supernature,” and posits the destiny of the human person, body and soul, as beatitude.).

29. Paul, John II, Sollicitudo Rei Socialis20–26 (1987) in The Encyclicals of John Paul II (Miller, J. Michael ed., Our Sunday Visitor 2001)Google Scholar (describing the Marxist and capitalist political realities of the twentieth century). The personalists and John Paul II are seeking to articulate a new Catholic metaphysics that integrates the ideas of objective truth and responsible freedom. This effort is in response to the twentieth-century pattern of ideological institutions imposing their own metaphysics upon society. The racism and genocide of Nazi and Marxist ideologies were products of skewed metaphysical understandings. A critique can be made of the liberal democracies and market economies when radically autonomous individuals are encouraged to adopt an unlimited consumerist mentality in the face of the starvation and poverty of the nations of the Third World. Bayer, Richard C., Capitalism and Christianity: The Possibility of Christian Personalism 37–68 (Georgetown U. Press 1999)Google Scholar (suggesting a “Christian Personalist” perspective in response to the failures of the market economy).

30. Paul, John II, Centesimus Annus, in The Encyclicals of John Paul II (Miller, J. Michael ed., Our Sunday Visitor 2001)Google Scholar (reviewing the world conditions of the twentieth century and the response of papal social teaching).

31. John Paul II, supra n. 29, at 5–10 (discussing the originality of twentieth century papal social teaching); and John Paul II, supra n. 30, at 4–11.

32. John Paul II, supra n. 29, at 20–21 (faulting Marxist government and economy); and John Paul II, supra n. 30, at 26–27 (discussing the fall of Marxist regimes in 1989).

33. John Paul II, supra n. 29, at 28 (criticizing the capitalist society of “consumption” and “consumerism”); and John Paul II, supra n. 30, at 31–35 (linking the validity of private property to a just distribution of goods).

34. Bayer, supra n. 29, at xv (suggesting that the response to “statism is not further emphasis on the isolated individual, but an expanded understanding of the human person which accounts for human agency in the context of our varied social communities.”).

35. This article is intended neither as a complete account of theological anthropology nor as the resolution of the array of philosophical problems raised by the relationship between anthropology and legal language. Corecco, supra n. 2, at 4 (The issues raised by the relationship include, inter alia, the validity of natural law, free will and determinism, particular and universal, contingent and transcendent, and the destiny of the human person.). Rather, the article sketches in broad strokes the unity of theological anthropology and canon law.

36. Mansfield, John H., The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 Cal. L. Rev. 847, 856–857 (1984)CrossRef Google Scholar (suggesting that diverse understandings “of human nature, human destiny and the meaning of life” are critical to understand constitutional law); and Glendon, Mary Ann, Abortion and Divorce in Western Law: American Failures, European Challenges 9 (Harv. U. Press 1987)Google Scholar (a society's law tells a deeper story about the meaning of the human person).

37. Crotty, Kevin M., Law's Interior: Legal and Literary Constructions of the Self 2 (Cornell U. Press 2001)Google Scholar (the concept of “self” is law's interior); and Taylor, Charles, Sources of the Self; The Making of the Modern Identity 495–521 (Harv. U. Press 1989)Google Scholar (modern identity shapes our view of individual rights and public institutions).

38. Dworkin, Ronald William, The Rise of the Imperial Self: America's Culture Wars in Augustinian Perspective 78–79 (Rowman & Littlefield Publishers, Inc. 1996)Google Scholar (suggesting that laws in democracy have fostered the self-understanding of the “expressive individualist” characterized by diversity and autonomy).

39. On the notions of equality, see e.g. Rawls, John, A Theory of Justice 511 (Belknap Press of Harv. U. Press 1971)Google Scholar (describing equality “as it applies to the respect which is owed to person irrespective of their social position”); and Dworkin, Ronald, Taking Rights Seriously 180 (Harv. U. Press 1977)Google Scholar PubMed (“We might say that individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them.”). Concerning the rules that translate the political values, see Rawls, supra n. 39, at 274–284 (Some government regulation is necessary to maintain a just distribution of resources in society so that all individuals are permitted to compete as equals in the economic sphere.); and Nozick, Robert, Anarchy, State, and Utopia 213–231 (Basic Books 1974)Google Scholar (certain inequalities such as intelligence and ability are innate, and the good society requires a minimum of government regulation). The separation of politics from law is an essential element of law based on liberal theory. For a radical critique of this doctrine, see Peller, Gary, The Metaphysics of American Law, 73 Cal. L. Rev. 1151, 1153–1155 (1985)CrossRef Google Scholar (arguing that the legal process cannot be neutral as it is impossible to separate it from politics). Cf. Unger, Roberto Mangabeira, Knowledge and Politics 63 (Free Press 1975)Google Scholar (stating that liberal theory's claim of neutrality gives rise to a fatal contradiction as it renders it unable to arrive at “a coherent understanding of the relations between rules and values in social life”).

40. The classical liberal theory was fashioned in the thought of certain eighteenth-century philosophers. See e.g. Locke, John, An Essay Concerning the True Original, Extent, and End of Civil Government 248, 330–333 (Laslett, Peter ed. 1988)Google Scholar (stating that the value of the state resides in large part in preserving the freedom of the autonomous individual to pursue licit private ends, and to afford a neutral forum for the resolution of disputes); and Mill, John Stuart, On Liberty, in Utilitarianism, Liberty and Representative Government 95–96 (repr. in Selected Writings of John Stuart Mill (Cowling, Maurice ed. 1968))Google Scholar (“[t]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”). For more modern explanations of autonomy and freedom in liberal theory, see Pettit, Philip, Republicanism: A Theory of Freedom and Government 18–31 (Oxford U. Press 1997)Google Scholar (discussing “republican liberty,” which means “freedom from domination”); and Holmes, Stephen, Passions and Constraint: On the Theory of Liberal Democracy 28–30 (U. Chi. Press 1995)Google Scholar (comparing liberal theory's “negative liberty” of freedom from government interference and “positive liberty” of the individual's right of political participation and suggesting the borders between negative and positive conceptions of liberty are often unclear). For a statement of the role of the judiciary and individual rights, see Stewart, Richard B. & Sunstein, Cass R., Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1202 (1982)CrossRef Google Scholar (Consistent with traditional liberal theory, the courts function to curtail government intrusions into the realm of individual autonomy through a set of fundamental constitutional rights.).

41. This process of secularization is evident in the application of liberal political theory from the origins of the United States constitutional government. It was stated plainly by the United States Supreme Court in Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (“In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”). But see McConnell, Michael W., The Origin and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1430–1449 (1990)CrossRef Google Scholar (tracing the secular and religious reasoning behind the adoption of the religion clauses in the first amendment).

42. Taylor, Charles, A Catholic Modernity?, in A Catholic Modernity? Charles Taylor's Marianist Award Lecture 25–37 (Heft, James L. ed., Oxford U. Press 1999)Google Scholar (suggesting that the secular critique of Christianity has resulted in a humanism which has ironically advanced basic Christian values, but that this humanism is now itself threatened as a result of the loss of the transcendent).

43. E.g. Rawls, John, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765, 783–784 (1997)CrossRef Google Scholar (explaining his “proviso,” which is an injunction to present only “proper political reasons” as opposed to comprehensive religious doctrines into public discourse).

44. As the Western legal tradition owes a debt to the medieval canon law, the exclusion of theological language constitutes a dislocation from history. Berman, supra n. 5, at 520–527 (concluding that the revolution in papal authority and canon law starting in the third quarter of the eleventh century formed the basis of the modern Western legal tradition).

45. This is not to suggest that in a more comprehensive comparative study, canon law would not profit from the reciprocity of liberal theory's counter language. The purpose of this article is limited to the exploration of the unity of canon law and theological anthropology and, therefore, to its function as a counter language.

46. Paul, John II, Fides et Ratio, in The Encyclicals of John Paul II (Miller, J. Michael ed., Our Sunday Visitor 2001)Google Scholar (urging the unity of reason and faith); and Lonergan, supra n. 15, at 103 (“The question of God, then, lies within man's horizon. Man's transcendental subjectivity is mutilated or abolished, unless he is stretching forth towards the intelligible. There lies within his horizon a region for the divine, a shrine for ultimate holiness. It cannot be ignored.”).

47. Lonergan, supra n. 15, at 105 (“As the question of God is implicit in all our questioning, so being in love with God is the basic fulfillment of our conscious intentionality.”).

48. From a philosophical perspective, “reason” enjoys a long development in the history of ideas. When he speaks of reason in the encyclical, Pope John Paul II means to reinvigorate the idea from its roots in Greek and Roman antiquity as it was later developed by the medieval thinkers such as Thomas Aquinas and Bonaventure to its modern expression in the thought of personalist philosophers such as Gilson and Maritain. All of these thinkers posited the objectivity of the truth as it is perceived in the mind of the reasonable and knowing subject. The rich historical development of the concept also includes the influence of Cartesian and Kantian approaches which tend to emphasize pure reason as a disembodied idea. More modern approaches as those of Nietzsche, Husserl and Heidegger argue for the incompleteness of these cognitive models on the basis of the linguistic, psychological and sociological complexity of reason. During the twentieth century, Fr. Copleston described the historical narrative of the development of the idea of reason through the ages and produced a multi-volume magnum opus, which detailed these various approaches. Copleston, Frederick, A History of Philosophy: Greece and Rome vol. 1, 4–8 (Image Books 1993)Google Scholar (discussing the history of philosophy as the perennial search for truth).

49. John Paul II, supra n. 46, at 54 (“Pope Pius XII warned against mistaken interpretations linked to evolutionism, existentialism and historicism.”).

50. Burtchaell, James Tunstead, The Dying of the Light: The Disengagement of Colleges and Universities from Their Christian Churches 828–850 (W.B. Eerdmans Publg. Co. 1998)Google Scholar (in the historical development of American higher education, the emphasis on faith as a private religious experience rendered it immune from rational analysis and diminished its role in both Protestant and Catholic colleges).

51. John Paul II, supra n. 46, at 55:

One currently widespread symptom of this fideistic tendency is a ‘biblicism’ which tends to make the reading and exegesis of Sacred Scripture the sole criterion of truth Other.… modes of latent fideism appear in the scant consideration accorded to speculative theology and in disdain for the classical philosophy from which the terms of both the understanding of faith and the actual formulation of dogma have been drawn.

52. Id. at 32 (Describing faith and reason as the wings of an eagle, John Paul stated: “[W]hat is sought is the truth of the person—what the person is and what the person reveals from deep within.”).

53. Husserl was the leading proponent of phenomenology, and there were many subsequent developments of his thought. Husserl, Edmund, The Crisis of European Sciences and Transcendental Phenomenology: An Introduction to Phenomenological Philosophy 145 (Carr, David trans., Nw. U. Press 1970)Google Scholar (describing intentionality as essentially hermeneutical since it is connected with understanding human experience); Heidegger, Martin, Being and Time 188–195 (Macquarrie, John & Robinson, Edward trans., SCM Press 1962)Google Scholar (discussing intentionality's function in the interpretation of textual and other symbolic materiality); and Merleau-Ponty, M., Phenomenology of Perception viii–ix (Smith, Colin trans., Humanities Press 1962)Google Scholar (suggesting that science is a “second order” hermeneutical expression of the basic experience of the world). Wojtyla's habilitation thesis at Lublin University focused on Max Scheler's philosophy as a phenomenological basis for a retrieved Christian ethics. This was an attempt to integrate the objectivity of Thomism with the emphasis on human experience in modern thought. Although he ultimately rejects phenomenology as an inadequate explanation of the objectivity of reality, Wojtyla argued that phenomenology represents a method for probing human experience. He was especially interested in the role played by emotions in support of moral action. Harvanek, Robert F., The Philosophical Foundations of the Thought of Pope John Paul II, in The Thought of Pope John Paul II: A Collection of Essays and Studies 1 (McDermott, John M. ed., Editrice Pontificia Università Gregoriana 1993)Google Scholar (describing the Thomist and phenomenological philosophical strains in the thought of John Paul II).

54. Heidegger, supra n. 53, at 78–90 (describing the human person as “Being-in-the-world”); Merleau-Ponty, supra n. 53, at 79 (adopting Heidegger's description); and Heelan, Patrick A., Space Perception and the Philosophy of Science 12 (U. Cal. Press 1988)Google Scholar:

[T]he individual human subject … [is] identical at all times with a Body that he or she uses or experiences; that Body is inserted into its experienced setting, a World (for that subject), within which it is both a noetic subject, and an object through which physical causality flows freely without interference or pause.

The human person forms a coherent sense of self by objectifying and ordering the contents of the interior life through the intellect, will and body. Cf. Lonergan, supra n. 15, at 8–9 (discussing the objectification of the self through consciousness and intentionality).

55. Heelan, supra n. 54, at 3–8 (describing the phenomenological critique of the Cartesian dualism); and Clark, Andy, Being There, Putting Brain, Body and World Together Again 33 (MIT Press 1997)Google Scholar (observing that the mind involves a complex interaction of brain, body and world to form the most ingrained elements of intellectual self-image).

56. Heelan, supra n. 54, at 3 (rejecting as too limited the epistemological approach of Locke, Berkeley, Hume, E. Mach, J.S. Mill and B. Russell in which to perceive is to be in a pictorial representation that matches physical reality). The interior life of the human person involves a complex array of conscious and unconscious sensations, drives, feelings, perceptions, thoughts, memories and meanings; and Lonergan, supra n. 15, at 9 (describing the empirical, intellectual, rational and responsible levels of consciousness).

57. The human person as “being-in-the-world” both intentionally acts as a causal agent and is acted upon by the perceived object. Wojtyla locates the full expression of the human person in the intentional and specifically the moral act. His central thesis is that as a human person one constitutes oneself through action. Wojtyla, supra n. 15, at 149–150 (human fulfillment is discovered in action).

58. Although he concurs with the phenonmenologists' criticism, Wojtyla placed importance on Kant's second categorical imperative that one must not use another human person as a means to an end. Wojtyla, Karol, Love and Responsibility 25–34 (Willetts, H.T. trans., Ignatius Press 1993)Google Scholar (discussing the meaning and implications of the use of another person).

59. Conley, John J., The Philosophical Foundations of the Thought of John Paul II: A Response, in The Thought of Pope John Paul II: A Collection of Essays and Studies 23, 27–28 (McDermott, John M. ed., Editrice Pontificia Università Gregoriana 1993)Google Scholar (stating that in his insistence that certain acts are intrinsically wrong, the Pope's explanation uses phenomenological analysis to support neo-scholastic positions).

60. Ratzinger, supra n. 28, at 87 (discussing the anthropological foundation of tradition).

61. Summa Theologica, supra n. 15, at I-II, 90, 4 (“quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata”).

62. Id. at I, 79, 8 (“[I]t is clear that in man reason and intellect are the same power.”).

63. St. Thomas drew a specific distinction between the practical and speculative intellects. Summa Theologica, supra n. 15, at I, 79, 11 (“The speculative and practical intellects are not distinct powers…. For it is the speculative intellect which directs what it apprehends…; while the practical intellect is that which directs what it apprehends… to operation.”); and Finnis, John, Natural Law and Natural Rights 101 (Clarendon Press 1986)Google Scholar (describing “practical reasonableness”). It is the practical intellect that grasps the first principles of natural law or practical reason. Summa Theologica, supra n. 15, at I-II, 91, 2 (“It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternal law.”); and Rhonheimer, Martin, Natural Law and Practical Reason: A Thomist View of Moral Autonomy 243 (Malsbary, Gerald trans., Fordham U. Press 2000)Google Scholar:

When we realize that there is a ‘plan’ (a ratio) that underlies the divine government of the world, and that this ratio gubernationis is called the eternal law, then we can understand what it means to say that the natural law is a participation of the eternal law in the rational creature.

Theological anthropology is essentially an endeavor in speculative reason but drawing upon a practical stamp in the eternal law.

64. Örsy, supra n. 9, at 176–177 (discussing the Thomistic definition of law as meaning an ordinance of practical right reason). The intellect functions to yield “right reason.” This is a general term, which means reason free from bias, self-interest and misdirected emotion. Cf. George, Robert P., In Defense of Natural Law 104 (Clarendon Press 1999)CrossRef Google Scholar (“Right reason is reason unfettered by emotional or other impediments to choosing consistently with what reason fully requires.”).

65. Lonergan, supra n. 15, at 17 (“[C]onscious and intentional operations exist and anyone that cares to deny their existence is merely disqualifying himself as a non-responsible, non-reasonable, non-intelligent somnambulist.”).

66. Eco, Umberto, Five Moral Pieces 21 (McEwen, Alastair trans., Harcourt 2001)Google Scholar (“I am convinced that there certainly are notions common to all cultures, and that they all refer to the position of our body in space.”); and Lonergan, supra n. 15, at 9 (A transcendental set of intellectual functions characterizes the human person as one with the capacity for the conscious awareness of sensation, thought, understanding, judgment and action.).

67. Eco, supra n. 66, at 21 (discussing “universal concepts regarding constriction”).

68. Karl Rahner's theology has been critiqued on the ground that it does not give adequate consideration to the role of the human body. von Balthasar, Hans Urs, The Glory of the Lord: A Theological Aesthetics vol. 2, 322, n. 302 (Riches, John ed., Louth, Andrew, McDonagh, Francis & McNeil, Brian trans., Ignatius Press 1984)Google Scholar (criticizing Rahner's interpretation of Bonaventure's doctrine of the interior or spiritual senses on the ground that it fails to respect the unity of the human and the divine, flesh and spirit).

69. Lakoff, George & Johnson, Mark, Philosophy in the Flesh: The Embodied Mind and Its Challenge to Western Thought 45–59 (Basic Books 1999)Google Scholar (observing that the linguistic study demonstrates reason to be dialogical rather than purely literal due to its dependence on metaphors drawn from the embodied reality of the intellect).

70. Clark, supra n. 55, at 53–82 (observing that all material organisms depend on exchanges of energy, air, food, seed and waste products with other material organisms so that the boundaries between organisms are relational in character).

71. Heelan, supra n. 54, at 157–158 (human knowing involves a perception, often prior to consciousness, that is not independent of human culture and history).

72. Lonergan, supra n. 15, at 43 (discussing the progress of human knowledge through successive generations).

73. Ratzinger, supra n. 28, at 87:

[I]t is as memory that intellect proves itself qua intellect; memory generates tradition; tradition realizes itself in history; as the already existing context of humanity, history makes humanity possible—for without the necessarily transtemporal relationship of person to person, humanity cannot be awakened to itself, cannot express itself.

74. Gadamer, supra n. 7, at 290–294 (discussing the significance for legal history to the interpretation and refashioning of law in the present by the jurist).

75. Ratzinger, supra n. 28, at 89 (“Tradition, which is by nature the foundation of man's humanness, is everywhere mingled with those things that deprive him of his humanity. The basis of man's humanness—tradition—is contaminated.”).

76. Gadamer, supra n. 7, at 249 (discussing tradition as dynamic and open to historical development).

77. E.g. Grisez, Germain G., The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1–2, Question 94, Article 2, in 10 Natural L. Forum 168, 192 (1965)Google Scholar (“From man's point of view, the principles of natural law are neither received from without nor posited by his own choice; they are naturally and necessarily known, and a knowledge of God is by no means a condition for forming self-evident principles”); Finnis, supra n. 63, at 85–90 (describing the basic goods); and George, supra n. 64, at 231:

Following Aquinas, proponents of the new classical theory identify a plurality of basic human goods, including life and health, knowledge and aesthetic appreciation, excellence in work and play, and various forms of harmony within each person and among persons (and their communities) and between persons (and their communities) and any wider reaches of reality.

There remains a debate, among contemporary proponents of natural law theory, about the extent of the independence of practical reason. The critics object to the approach of Finnis on the ground that the emphasis on the independence of practical reason seems to betray the Thomistic synthesis and adopt Kantian de-ontology. E.g. Hittinger, Russell, A Critique of the New Natural Law Theory 198 (U. Notre Dame Press 1987)Google Scholar (suggesting that the methodology focused on practical reason runs the risk of adopting Kant's argument for the autonomy of moral obligation from metaphysics.). Contra George, supra n. 64, at 45 (observing that “the basic goods are not extrinsic to the persons by and in whom they are instantiated, but, are, rather, intrinsic aspects of human well-being and fulfillment”). The consequence of the alleged split between law and ontology, it is argued, opens the retrieved theory of natural law to the attacks of skeptics who reject the self-evident quality of the basic human goods. Hittinger, supra at 198 (criticizing theorists who attempt “to recover natural law theory by way of shortcuts”). Cf. Weinreb, Lyold L., Natural Law and Justice 115 (Harv. U. Press 1987)Google Scholar (arguing that the basic human goods are not self-evident and instead reflect the personal beliefs of the theorists who identify them). But see Finnis, supra n. 8, at 29–31, 86–94, 102 (explaining that the basic human goods and first practical principles are in accord with an “anthropological account of persons as human,” but need not necessarily be deduced from such an account); and Finnis, John, Fundamentals of Ethics 20–23, 25 (Georgetown U. Press 1983)Google Scholar.

78. Finnis, supra n. 63, at 85–90. Professor Finnis does not necessarily intend this list with an exhaustive exclusivity. Life, for example, might be said to be a complex basic good that includes marriage, procreation and the education of children. Finnis, supra n. 8, at 82, 143–154.

79. George, supra n. 64, at 102 (identifying the three sets of principles of which natural law consists). For a discussion of the transition from basic goods to rights, see Finnis, supra n. 8, at 103–140.

80. According to Saint Thomas Aquinas, the legislator translates the transcendent principles of natural law into the historically specific rules of positive law through the practical intellect in two ways. The first way consists in a direct conclusion from premises. Summa Theologica, supra n. 15, at I-II, 95, 2; Finnis, supra n. 63, at 284–290 (noting that the requirements of practical reason, as for example the prohibition of killing, are derived from particular fundamental values, e.g. life, and that law is either directly deduced from principles of practical reason or from construing determinationes); and George, supra n. 64, at 102–111 (observing that natural law consists of three sets of principles, first, those concerning basic human goods, second, intermediate principles directing human choice and action, and third, fully specific moral norms). Aquinas says the second way in which the legislator translates the transcendent principles of natural law into positive law involves determinationes. Summa Theologica, supra n. 15, at I-II, 95, 2. Paul, John II, Veritatis Splendor, in The Encyclicals of John Paul II (Miller, J. Michael ed., Our Sunday Visitor 2001)Google Scholar (affirming the significance of fundamental goods to the moral life).

81. Tierney, supra n. 4, at 69 (describing the natural rights theory present in the thought of the medieval canonists); and Provost, James H., The Obligations and Rights of All the Christian Faithful, in The Code of Canon Law: A Text and Commentary 134 (Coriden, James A., Green, Thomas J. & Heintschel, Donald E. eds., Paulist Press 1985)Google Scholar (referring to the sixth principle for the revision of the Code that called for the protection of fundamental human rights on the basis of natural law).

82. CIC-1983, Canon 212 § 3:

They have the right, indeed at times the duty, in keeping with their knowledge, competence and position, to manifest to the sacred Pastors their views on matters which concern the good of the Church. They have the right also to make their views known to others of Christ's faithful, but in doing so they must always respect the integrity of faith and morals, show due reverence to the Pastors and take into account both the common good and the dignity of individuals.

83. CIC-1983, Canon 215 (“Christ's faithful may freely establish and direct associations which serve charitable or pious purposes or which foster the christian vocation in the world, and they may hold meetings to pursue these purposes by common effort.”).

84. CIC-1983, Canons 217:

Since Christ's faithful are called by baptism to lead a life in harmony with the gospel teaching, they have the right to a christian education, which genuinely teaches them to strive for the maturity of the human person and at the same time to know and live the mystery of salvation.

226 § 2 (“Because they gave life to their children, parents have the most serious obligation and the right to educate them. It is therefore primarily the responsibility of christian parents to ensure the christian education of their children in accordance with the teaching of the Church.”).

85. CIC-1983, Canon 218 (“Those who are engaged in fields of sacred study have a just freedom to research matters in which they are expert and to express themselves prudently concerning them, with due submission to the magisterium of the Church.”).

86. CIC-1983, Canon 221 § 1 (“Christ's faithful may lawfully vindicate and defend the rights they enjoy in the Church, before the competent ecclesiastical forum in accordance with the law.”).

87. Finnis, supra n. 8, at 176–180 (discussing the natural basis of individual human dignity); and Tiemey, supra n. 4, at 55–77 (suggesting that the concept of an individual right is already present in the work of the medieval canonists).

88. Codex iuris canonici Pii X Pontificis Maximi iussu digestus, Benedicti Papae XV auctoritate promulgatus (Die 27 m. Maius a. 1917), in 9 AAS II, xix–xxxviii (1917)Google Scholar PubMed. This Code was in effect from 1918 until 1983.

89. Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights 173 (Random House 2001)Google Scholar (observing the Universal Declaration “harvested the wisdom” of the various rights documents). This is not to suggest that that the idea of human rights was somehow extrinsic to prior Catholic theology and law. Finnis, supra n. 8, at 136 (“Though he never uses a term translatable as ‘human rights,’ Aquinas clearly has the concept.”).

90. Provost, supra n. 81, at 134–136 (describing the development of the list of fundamental rights or lex ecclesiaefundamentalis in the various drafts leading to the CIC-1983).

91. As the second way or determinationes demands more creativity than the first, Aquinas draws an analogy to the “craftsman,” who sets-out to build a house. Summa Theologica, supra n. 15, at I-II, 95, 2; George, supra n. 64, at 108–109 (translating the Latin word artifex as “architect”); and id. at 102 (suggesting that natural law consists of three sets of principles: basic human goods, intermediate principles and specific moral norms, all of which depend on practical reason). Consistent with the Thomistic metaphor, the legislator is like the craftsman who understands the general form of house and must implement it in a practical specification. Id. at 109 (“[T]he legislator (including the judge to the extent that the judge in the jurisdiction in question exercises a measure of law-creating power) makes the natural law effective for his community by deriving the positive law from the natural law.”).

92. Finnis, supra n. 63, at 86–87 (describing procreation and education as included in the category).

93. CIC-1983, Canon 793 (parents have the right and obligation to educate their children, and Catholic parents have the duty and right to select the institutional means by which Catholic education can be imparted); and Provost, supra n. 81, at 162–163 (“[T]here is a veritable bill of parental rights and obligations scattered throughout the revised Code.”).

94. CIC-1983, Canon 796 (parents should value schools and parents, and teachers should have a cooperative relationship with regard to children's education); Canon 797 (parents must enjoy “real freedom in their choice of schools”); Canon 798 (parents should entrust their children to schools that afford Catholic education, and when this is not possible, parents must provide the Catholic education outside the school); Canon 799 (the laws of society should provide for religious and moral education in schools in accord with the conscience of the parents); Canon 800 (the Church has the right to establish and administrate schools); Canon 801 (religious communities play a special role in sponsoring Catholic schools and religious education); Canon 802 (the diocesan bishop is responsible to establish schools in which Christian education occurs, including professional, technical and special education schools); Canon 803 (Catholic schools are sanctioned by ecclesiastical authority and responsible to teach Catholic doctrine); Canon 804 (Catholic religious formation and its media are subject to the authority of the Church); Canon 805 (the diocesan bishop has the authority to appoint and remove religion teachers in Catholic schools); and Canon 806 (the diocesan bishop has the “right to watch over and inspect” Catholic schools in his jurisdiction).

95. CIC-1983, Canons 851, 2°, 855, 857, 867–868, 874 (Baptism); Canon 890 (Confirmation); Canon 914 (Eucharist); Canons 1063, 1071 § 1, 6° (Marriage); and Canon 835 § 4 (in general, parents share in the sanctifying mission of the Church by providing Catholic formation).

96. CIC-1983, Canon 1478 (§ 1 provides that parents represent their children before an ecclesiastical tribunal, § 2 allows for the appointment of a guardian in cases when the rights of a child conflict with those of the parents, and § 3 permits the direct testimony of minors in certain situations); and Canon 1548 § 2, 2° (recognizing testimony privilege based on consanguinity and affinity).

97. CIC-1983, and Canon 796 § 2 (in cooperating with teachers in the education of children, parents may form associations); and Canons 298–299 (concerning the right of Christian faithful in general to form associations).

98. George, supra n. 64, at 108 (suggesting that “in making determinationes, the legislator enjoys a kind of creative freedom”).

99. During the twentieth century, the dominant role of the state in the education of children was typical of both the liberal democracies and communist states. It stood in contrast to the Catholic position. Provost, supra n. 81, at 162:

In its struggle with civil authorities who wish to take over schools and monopolize the educational enterprise, the Church has insisted that parents are the primary educators of their children and therefore have the primary right and duty to determine how that education will be carried out.

Coughlin, John J., Common Sense in Formation for the Common Good—Justice White's Dissents in the Parochial School Aid Cases: Patron of Lost Causes or Precursor of Good News, 66 St. John's L. Rev. 261, 282–289 (1992)Google Scholar (discussing the constitutional recognition of the natural-law right).

100. Additional factors, such as creativity, intuition, serendipity and conclusions based on limited samples and statistical probability, are examples of mental process often employed in science that go beyond pure reason. Kuhn, Thomas S., The Structure of Scientific Revolutions 52–65 (3d ed., U. Chi. Press 1996)CrossRef Google Scholar (discussing the emergence of scientific discoveries).

101. John Paul II, supra n. 46, at 32 (“[B]elief is often humanly richer than mere evidence, because it involves an interpersonal relationship and brings into play not only a person's capacity to know but also the deeper capacity to entrust oneself to others….”).

102. Lonergan, supra n. 15, at 42 (“Science is often contrasted with belief, but the fact of the matter is that belief plays as large a role in science as in most other areas of human activity.”).

103. John Paul II, supra n. 46, at 32 (discussing the love for truth as leading to the interpersonal trust “to enter into a relationship with them which is intimate and enduring”).

104. Id. (“Human perfection, then, consists not simply in acquiring an abstract knowledge of the truth, but in a dynamic relationship of faithful self-giving with others.”). Wojtyla, supra n. 58, at 126 (describing love as the gift of “one's whole self”).

105. Summa Theologica, supra n. 15, at I-II, 3, 4 (“[T]he essence of happiness consists in an act of the intellect: but the delight that results from happiness pertains to the will.”); and Gilson, supra n. 15, at 353 (“The very essence of beatitude, therefore, consists in an act of the intellect; and it is only the delight which accompanies it that can be considered as an act of the will.”).

106. Wojtyla, supra n. 15, at 36–41 (describing self knowledge and self consciousness).

107. Rahner, supra n. 14, at 44–89 (describing the human person in the presence of absolute mystery).

108. Summa Theologica, supra n. 15, at I-II, 1, 6 (“Man must, of necessity, desire all, whatsoever he desires, for the last end.”); and Gilson, supra n. 15, at 352 (“It is actually impossible that man's last end be the human soul or anything belonging to it…. [M]an's beatitude is in God alone, who is the first and universal good, the source of all other goods.”).

109. Lonergan, supra n. 15, at 105–106:

Being in love with God, as experienced, is being in love in an unrestricted fashion. All love is self-surrender, but being in love with God is being in love without limits or qualifications or conditions or reservations. Just as unrestricted questioning is our capacity for self-transcendence, so being in love in an unrestricted fashion is the proper fulfillment of that capacity.

110. John Paul II, supra n. 46, at 16 (describing the human person as the one who loves the truth).

111. The notion of mystery was confronted by the Enlightenment critique as well as the progress of science. In response, twentieth-century theological anthropology attempted to retrieve a concept of mystery that would no longer be discredited. E.g. Rahner, supra n. 14, at 60–61 (suggesting that the term “mystery” needs to “be understood, deepened, and then gradually shown to be identical with the word “God”).

112. Summa Theologica, supra n. 15, at I-II, 3, 5 (“Happiness consists in an operation of the speculative rather than of the practical intellect.”); and Gilson, supra n. 15, at 354 (“The most perfect power of the intellect is the one whose object is the most perfect, that is whose object is the essence of God. This essence is the object of the speculative not of the practical intellect.”).

113. CIC-1983, Canon 211 (“All Christ's faithful have the obligation and the right to strive so that the divine message of salvation may more and more reach all people of all times and all places.”).

114. Declaration on Religious Liberty: On the Right of the Person and Communities to Social and Civil Liberty in Religious Matters, “Dignitatis Humanae,” in Vatican Council II: The Conciliar and Post Conciliar Documents 799, 800–804 (Flannery, Austin ed., Liturgical Press 1992)Google Scholar.

115. Id.

116. Corecco, supra n. 2, at 137 (“The ultimate end of the canonical order is not simply that of guaranteeing the bonum commune ecclesiae, but of realizing communio.”). Örsy, supra n. 9, at 58 (“Canon law originates with and remains tightly bound to a hierarchy of values, human and religious.”).

117. Summa Theologica, supra n. 15, at I-II, 90, 4, (defining law as an “ordinance of reason for the common good, made by him who has care of the community, and promulgated.”).

118. CIC-1983, Canon 204 § 1:

Christ's faithful are those who, since they are incorporated into Christ through baptism, are constituted the people of God. For this reason they participate in their own way in the priestly, prophetic and kingly office of Christ. They are called, each according to his or her particular condition, to exercise the mission which God entrusted to the Church to fulfil in the world.

119. Kaslyn, Robert J., Book II: The People of God, Introduction, in New Commentary on the Code of Canon Law 241, 242–245 (Beal, John P., Coriden, James A. & Green, Thomas J. eds., Paulist Press 2000)Google Scholar (the fundamental rights or lex ecclesiae fundamentalis are situated in the theological context of communio); Ratzinger, Joseph, Congregatio pro Doctrina Fidei. Litterae ad Catholicae Ecclesiae Episcopos de aliquibus aspectibus Ecclesiae prout est Communio (Die 28 m. maii a. 1992), in 85 AAS 838 (1993)Google Scholar (explicating the dogmatic implications of communio). To mention only a few of theologians and canonists who concur on this point, see Grocholewski, Zenon, Aspetti teologici dell'attivita giudiziaria delta Chiesa, 110 Monitor Ecclesiasticus 489, 492–495 (1985)Google Scholar; von Balthasar, Hans Urs, In the Fullness of Faith: On the Centrality of the Distinctively Catholic 67–91 (Harrison, Graham trans., Ignatius Press 1988)Google Scholar; Anton, Angel, Postconciliar Ecclesiology, Expectations, Results and Prospects for the Future, in Vatican II: Assessment and Perspectives Twenty-Five Years After (1962–1987) vol. 1, 407, 416–420 (Latourelle, René ed., Paulist Press 1988)Google Scholar; and Schindler, David L., Heart of the World, Center of the Church: Communio Ecclesiology, Liberalism, and Liberation 7–31 (W.B. Eerdmans Publg. Co. 1996)Google Scholar.

120. Ghirlanda, supra n. 12, at 30–45. (Etymologically, the Latin word communio derives from the Greek word koinonia, which means a communion, fellowship or sharing in common.).

121. Kasper, Walter, The Theological Foundations of Human Rights, 50 Jurist 148, 157 (1990)Google Scholar (discussing the natural law and theological tradition as the foundation for human rights).

122. Gadamer, supra n. 7, at 67–73 (a symbol emerges organically and appeals to aesthetic consciousness to point beyond itself).

123. Örsy, Ladislas, Theology and Canon Law: An Inquiry into their Relationship, 50 Jurist 402 (1990)Google Scholar (summarizing some of the numerous theories about the relationship between canon law and theology). As illustrative of the theories, see e.g. Mörsdorf, Klaus, Schriften zum kanonischen Recht (Aymans, W., Geringer, K.T. & Schmitz, H. eds., 1989)Google Scholar (canon law is a theological discipline with a juridical method); Corecco, supra n. 2, at 96–107 (canon law should not be defined so much as ordinatio rationis, but rather as ordinatio fidei); Bertrams, Wilhelm, De relatione inter episcopatum et primatum. Principia philosophica et theologica quibus relatio iuridica fundatur inter officium episcopate et primatiale (1963)Google Scholar (canon law studies the external juridic realities of philosophical and theological truths); Labandeira, Eduardo, Tratado de Derecho Administrate Canónico 48–49 (1988)Google Scholar (given the sacramental character and special mission of the Church, canon law, in its existence and authoritative interpretation, remains always subject to ecclesiastical authority); Ciprotti, Pio, Stato attuale e prospettive delta giustizia amministrativa canonica, 98 Monitor Ecclesiasticus 354 (1973)Google Scholar (canon law may be considered as a proper object of juridical science); and Ghirlanda, supra n. 12, at 15–45 (canon law reflects the mystery of hierarchical communion in the Church).

124. Von Balthasar, supra n. 14, at 162–163 (describing the historical):

longing to move from the letter to the spirit, from the institution and the sacrament to the intellectus within them … a growing awareness that the ‘peoples’ could only take from the Church (and its mission) its ‘form’ if they found in the form that intellectus which would impart to it, beyond its naked factualness, an inner necessity of salvation history.

125. Maurer, Armand, St. Thomas and Historicity 26 (Marquette U. Press 1979)Google Scholar (noting that St. Thomas held there is one eternal truth, which is the truth of the divine mind, while later thinkers such as Duns Scotus, Suarez and Descartes posited the doctrine of eternal truths); and Gilson, supra n. 15, at 302 (suggesting that with regard to moral truths from which laws are derived “there are no universals in morals except principles. When it is a question of deciding upon any voluntary action whatsoever, a whole set of principles becomes necessary plus detailed discussion of all the circumstances which meet in it.”). This is not to deny the existence of the universality of objective moral norms. Both practical reason and revelation recognize specific and negative norms. For example, the negative prohibition, “Thou shalt not kill,” is part of the Decalogue and a basic principle available through the natural order of practical reason.

126. Maurer, supra n. 125, at 2 (“Nietzsche opened the way to a revolution of metaphysics by asserting the death of God and at the same stroke historicizing metaphysical truth.”). Prior to Nietzsche, David Hume had engendered skepticism about the possibilities of moving from the empirical “is” to the moral “ought.” Hume, David, A Treatise of Human Nature 302 (Norton, David Fate & Norton, Mary J. eds., Oxford U. Press 2001)Google Scholar; MacIntyre, Alasdair, After Virtue: A Study in Moral Theory 57–59 (2d ed., U. Notre Dame Press 1984)Google Scholar (defending the transition from is to ought on the ground that the nature and function of the human person are interrelated concepts); and Bradley, Gerald V., Natural Law, in Christian Perspectives on Legal Thought 277, 282–286 (McConnell, Michael W., Cochran, Robert F. Jr. & Carmella, Angela C. eds., Yale U. Press 2001)Google Scholar (discussing the interrelation between practical and speculative reason).

127. Unger, supra n. 39, at 193–194 (observing the general trend of modern social theory to reflect the view that “the very notion of a unitary human nature dissolves at the touch of history's magic wand”).

128. Maurer, supra n. 125, at 32, citing Hegel's Lectures on the History of Philosophy vol. 3, 52 (Haldane, E.S. & Simson, Frances H. trans., Routledge & Paul 1898)Google Scholar.

129. Concordia discordantium canonum. Decretum Magistri Gratiani, in I Corpus Iuris Canonici, (Friedberg, Aemilius ed. 1959)Google Scholar; Brundage, supra n. 5, at 47–49 (Gratian's dialectic became the standard that “demonstrated concretely how abstract legal principles could be applied to resolve the messy disputes that continually arise between real people in the real world.”); and Berman, supra n. 5, at 602, n. 11 (The Corpus Iuris Canonici was established officially in 1580 by Pope Gregory XIII, as consisting of the following decretals: (1) Gratian's Decretum (c. 1140); (2) Pope Gregory IX's Decretales (1234); (3) Pope Boniface VIII's Liber Sextus Decretalium (1298); (4) Pope Clement V's Clementinae (1305–1314), and those decretals issued by the Council of Vienne (1314), and transmitted to the universities by Pope John XXII in 1317. In addition, although not an official part of the text, John XXII's Collectio Viginti Extravagantium and the Extravagantes Communes (1316–1364) are usually considered to be part of the Corpus Iuris Canonici.).

130. Unger, supra n. 39, at 194 (“The claim that human nature is independent of history has striking political implications: the limits of man's nature restrict the power of his striving to transform his experience.”); and cf. Maurer, supra n. 125, at 32 (Contrary to the criticism of Thomistic epistemology as removed from history, St. Thomas advanced an understanding of truth that integrated the universal and transcendent with the temporal and historic such that it permitted the possibility for development and new insight in human knowledge.).

131. Gratian built on the collections of earlier decretalists, particularly those of Burchard, Bishop of Worms (1012) and Ivo, Bishop of Chartres (1095). Burchard made one of the earliest attempts to compile all the laws of the Church into a single book. He arranged his vast collection not chronologically but according to various subjects such as the Sacraments, crimes, spiritual and corporal works of mercy, and the contemplation derived from ascetic life. See Migne, J.P., Patrologiae Cursus Completus, Series Latina, [hereinafter PL] 140, 539–1058 (1844–1855)Google Scholar. Like Burchard, Ivo compiled a vast collection of laws with commentary in order to unite canon law “into one body.” Id. See Migne, , PL 166, 47Google Scholar. An analysis of the canonists and theologians upon whom Gratian relied is provided in Chodorow, Stanley, Christian Political Theory and Church Politics in the Mid-Twelfth Century: The Ecclesiology of Gratian's Decretum 2, n. 3 (U. Cal. Press 1972)Google Scholar.

132. Berman, supra n. 5, at 143–148, 151 (Gratian's method “revolutionized the science of law.”); and Dawson, John P., The Oracles of the Law 114–117 (U. Mich. 1968)Google Scholar (“The primary task of the jurists as they conceived it was to provide solutions for cases that had arisen or might arise, testing and revising their central ideas by observing their effects on particular cases.” The Roman jurists had been primarily concerned with “the consistent and orderly treatment of individual cases… [and] [t]heir whole impulse was toward economy, not only in language, but in ideas”); and Lefebvre, Charles, Equity in Canon Law, in Equity in the World's Legal Systems: A Comparative Study 93 (Newman, Ralph A. ed., Etablissements Emile Bruylant 1973)Google Scholar (“Canon law asserted its superiority over Roman law by reason of the greater attention given by canon law to particular circumstances, and especially to the Christian concept of the nature of man.”). Cf. Rodes, Robert E. Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation 66 (U. Notre Dame Press 1977)Google Scholar (suggesting that even as theology afforded the “roots” of canon law, the method and substance of the new canon law was appropriated directly or indirectly from the Roman jurists).

133. Berman, supra n. 5, at 204–205 (Although it manifests transcendent characteristics, canon law also possesses the characteristic of “organic development.” The ability of the medieval canonists to assimilate both immutable principles and historical circumstance into the corpus of law became the foundation of the western legal tradition.).

134. Id. at 144–145 (“Divine law is the will of God reflected in revelation, especially the revelation of Holy Scripture.”).

135. D. 9 c. 1. Corecco, supra n. 2, at 35–38 (By positing the “connaturality” of reason and faith, St. Thomas “eliminated the possible pantheistic elements concealed in identifying natural with divine law, as had been done by Isidore of Seville and Gratian.”).

136. D. 9 c. 1.

137. D. 11 p. cc. 1–4.

138. D. 9 dicta post c. 9.

139. Ioannes Paulus Pp. II, Sacrae Disciplinae Leges, supra n. 1, at 53:

As the Church's fundamental legislative document, and because it is based on the juridical and legislative heritage of revelation and tradition, the Code must be regarded as the essential instrument for the preservation of right order, both in individual and social life and in the Church's zeal.

Corecco, supra n. 2, at 134 (“The ‘theologization’ and ‘sacramentalization’ of canon law do not lead to its ‘de-juridization’ because the normativity that issues from the Church is an unambiguous index of juridical authenticity.”).

140. Helmholz, supra n. 4, at 397:

Whether one looks at their ability in mastering the relevant authorities, their proficiency in reasoning by analogy, their skill in analyzing precedents, their talent in drawing legal distinctions, or their energy in working through a large body of law, the canonists seem scarcely inferior to modern lawyers.

141. Lonergan, supra n. 15, at 128–130 (describing dialectical method).

142. Although Gratian placed the natural and divine law at the interior of positive law, he did not resolve the problem raised by the relation between natural and divine law. Corecco, supra n. 2, at 38 (referring to the Patristic concern that the identification of the natural and divine law tended to attribute pantheistic elements to the theory of law). St. Thomas clarified the relation by distinguishing between the natural and supernatural, and positing the “co-naturality” of reason and faith. Id. (“By making this distinction, St. Thomas preserved both the rationalistic element of Stoic natural law theory and the religious and sacral one of the Judeo-Christian tradition.”). John Paul II, supra n. 46, at 1 (describing reason and faith as “two wings” requiring the coordinated action of both to discover the truth).

143. Book n of the CIC-1983, Canon 204, introduces the section on the fundamental rights with a description of the Christian faithful as those who are incorporated into Christ and the Church through Baptism.

144. The United States Supreme Court has consistently recognized the natural right. Meyer v. Neb., 262 U.S. 390, 400 (1923) (stating that parents have a “natural duty” to educate their children); and Pierce v. Socy. of Sisters, 268 U.S. 510, 535 (1925):

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Prince v. Mass., 321 U.S. 158, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply not hinder.”); and Wis. v. Yoder, 406 U.S. 205, 232 (1972):

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.

145. Foot, Philippa, Natural Goodness 51 (Clarendon Press 2001)CrossRef Google Scholar (discussing human goodness as sui generis, which gives rise to the understanding of right and wrong and rights and responsibilities).

146. Brundage, supra n. 5, at 155 citing Hugguccio, Summa decretorum, 50 c. 25 v. iubeo. (The medieval canonists had long held that the natural law formed an objective moral order that was available through human reason to each individual human being and through which the human person constituted oneself by acts of the human will. The medieval canonist, Hugguccio (d. 1210), for example, insisted that the ius naturale constituted both an objective norm and a subjective faculty of the human soul.).

147. Saint Thomas concluded that through the intellect's use of right reason, and especially so when enlightened by grace, a set of universal and transcendent moral principles is available to each human person. Summa Theologica, supra n. 15, at I-I, 75 (discussing how the natural ability of the intellect to know any truth and of the will to act for any good is perfected by grace).

148. Corecco, supra n. 2, at 140 (“[A]lthough he defines the law as ordinatio rationis, [St. Thomas] considers such a definition valid not only for human and natural law, but also for the lex aeterna and the lex divina.”).

149. Id. at 144–145:

If it is possible, in the philosophy of law, to work with a notion of law that is metaphysically conceived as ordinatio rationis, by applying the analogia entis, then the proper analogy in theology is that of faith…. The existence of the analogia between ratio and fides is justified by the fact that, in both cases, a cognitive process is involved.

150. Von Balthasar, supra n. 14, at 27–30 (discussing sinful time and the time of grace).

151. In Thomistic thought grace is not in opposition to nature, but grace builds upon nature and so perfects it. Corecco, supra n. 2, at 37–38 (quoting the Thomistic principle “gratia perficit, non destruit, naturam”).

152. Summa Theologica, supra n. 15, at I, 82, 1; and Gilson, supra n. 15, at 236–238 (describing the faculty of the will in Thomistic thought).

153. Gilson, supra n. 15, at 244 (noting the tendency of some “philosophers [to] limit human liberty to this absence of constraint”).

154. Cf. Unger, supra n. 39, at 84:

Freedom may be defined positively or negatively in liberal thought. Positively, it is the power to pursue one's goals without human interference. Negatively, it is the condition in which one does not have to submit to someone else's will. The positive and the negative definitionfs] are interchangeable, given the qualification attached to the former, ‘without human interference.’

155. John Paul II, supra n. 46, at 32 (speaking of the human person and the trust in knowledge acquired by others).

156. Summa Theologica, supra n. 15, at I-II, 90, 4, (defining law as an “ordinance of reason for the common good, made by him who has care of the community, and promulgated”).

157. CIC-1983, Canon 747 (stating that the Church has been entrusted with the “deposit of faith” and that it must be free to preach and teach the truth of the faith).

158. CIC-1983, Canons 749 §§ 1 & 2, 750, 752 (defining the role of the College of Bishops with the Roman Pontiff at its head in the teaching of moral truth).

159. Maurer, supra n. 125, at 3 (“Contrary to the older view of man as possessing a permanent nature underlying his historical and cultural changes, the more recent philosophy of man refuses him a fixed and abiding nature. Nothing essential or substantial to man remains throughout his history.”).

160. Id. at 2 (Nietzsche expressed this view when he described truth as “the will to power.”).

161. Taylor, supra n. 37, at 453 (describing Nietzsche's view of the self as tied to the need to “overcome the force of morality and find the strength to rise above its demands”).

162. Crotty, supra n. 37, at 157–159 (emphasis omitted) (suggesting that irrational factors undercut the reasonableness and legitimacy of the law that thinkers such as Habermas and Rawls ascribe to the “will-formation” that should take place “throughout a free society, in discussions, reports, debates by and among citizens.”); and Unger, supra n. 39, at 85 (arguing that modern political philosophy conceives of laws that enable the pursuit of private ends as one of the mains ways to establish freedom).

163. Tierney, Brian, Religion and Rights: A Medieval Perspective, 5 J. L. & Relig. 163, 164–167Google Scholar (through ascribing an objective and subjective meaning to ius, the medieval canonists developed a “concept of each human being as a person, entitled to consideration as a person, capable of moral discernment and self-determination”).

164. Gen 1:26; and Gilson, supra n. 15, at 345–346 (discussing the quality of being in the image of God).

165. See Brundage, supra n. 5, at 155 citing Hugguccio, Summa decretorum, 50 c. 25 v. iubeo (Hugguccio insisted that the ius naturale constituted both an objective norm and a subjective faculty of the human soul.).

166. Tierney, supra n. 4, at 19 (The canonists, for instance, transformed the Roman notion of action or suit by treating it as a “subjective ius.”).

167. Tierney, supra n. 163, at 171 (The canonists defended certain fundamental rights through the use of natural law concepts. The rights to private property, marriage, procedural safeguards in litigation, free consent to agreements, and privacy of conscience in the internal forum were among those natural rights that helped to define the social order of the medieval world. The canonists drew charters of rights to be exercised by local communities, guilds, colleges, churches and the emerging city-states.).

168. Tierney, supra n. 163, at 164 (identifying three characteristics of medieval anthropology and canon law: (1) “the concept of each human being as a person, entitled to consideration as a person, capable of moral discernment and self-determination”; (2) “the church not just as a collection of separate individuals but as a corporate community, sustaining a life of its own, apart from the secular power…”; and (3) “a… more subtle yet significant aspect… the relation between the individual Christian and the church conceived of as a united whole, a mystical body”).

169. Wojtyla, supra n. 15, at 77 (discussing the term “nature” in the actual human being as an ontological reality that points to the essence of human nature).

170. Id. at 184–186 (discussing the unity of the corporeal and spiritual in the human person).

171. Id. at 265 (action has both an ontological and axiomatic significance in that “the person performing the action… fulfills himself in it”); and Wojtyla, Karol, The Personal Structure of Self-Determination, in Person and Community: Selected Essays 187, 191 (Sandok, Theresa trans., Peter Lang 1993)Google Scholar (“Action accompanies becoming”).

172. Wojtyla, supra n. 171, at 191:

Self-determination reveals that what takes place in an act of will is not just an active directing of the subject toward a value. Something more takes place as well: when I am directed by an act of will toward a particular value, I myself not only determine this directing, but through it I simultaneously determine myself as well.

173. Id. (“I am also in some sense the ‘creator of myself.’”).

174. Wojtyla, Karol, The Human Person and Natural Law, in Person and Community: Selected Essays 181 (Sandok, Theresa trans., Peter Lang 1993)Google Scholar (describing the alleged conflict between nature law and the human person as illusory).

175. Wojtyla, The Personal Structure of Self-Determination, supra n. 171, at 192 (“in the ontological sense the human being is a ‘someone’ from the very beginning”).

176. Wojtyla, Karol, On the Dignity of the Human Person, in Person and Community: Selected Essays 177, 179 (Sandok, Theresa trans., Peter Lang 1993)Google Scholar (The dignity of the human person is confirmed in the revelation that we are “created in ‘the image and likeness of God.’”).

177. Wojtyla, supra n. 15, at 72–74 (discussing the ontological basis of action).

178. Id. at 68 (“man creates himself in acting”).

179. Wojtyla, The Personal Structure of Self-Determination, supra n. 171, at 192.

180. Wojtyla, supra n. 58, at 200 (discussing the human person's ability to develop in virtue through self-mastery of the sensual and emotional spheres of the interior life).

181. Summa Theologica, supra n. 15, at I, 83, 1; and Gilson, supra n. 15, at 156, 244 (defining evil as the absence of good and discussing the freedom of the human will).

182. John Paul II, supra n. 80, at 54 (discussing the link between freedom and conscience).

183. Id. at 54–60 (describing conscience as the individual's “inner sanctuary” and the witness to the “universal and objective norm of morality”).

184. Gaudium et Spes, supra n. 14, at 916 (describing conscience as “man's most secret core, and his sanctuary”).

185. Von Balthasar, supra n. 14, at 43–72 (comparing the imperfectability of the person with the action of grace).

186. John Paul II, supra n. 80, at 64 (discussing the formation of conscience).

187. Id. at 62 (describing erroneous conscience).

188. Gaudium et Spes, supra n. 14, at 916–917 (the primacy of conscience means that in the conscience the human person encounters a law implanted by God).

189. CIC-1983, Canon 219 (“All Christ's faithful have the right to immunity from any kind of coercion in choosing a state in life.”).

190. Örsy, Ladislas, Marriage In Canon Law: Texts and Comments, Reflections and Questions 61 (M. Glazier 1988)Google Scholar (discussing the significance of free consent to Catholic marriage).

191. These factors recognized in the CIC-1983 include, inter alia, a minimum age requirement (Canon 1083), abduction (Canon 1089), lack of the sufficient use of reason (Canon 1095, 1°), grave lack of understanding concerning the essential matrimonial rights and obligations (Canon 1095, 2°), psychological factors that render a person incapable of assuming the essential obligations of marriage (Canon 1095, 3°), error of person (Canon 1097), deceit or fraud (Canon 1098), force or fear (Canon 1103). For critical analysis of the way in which Church tribunals sometimes apply these factors, see Vasoli, Robert H., What God has Joined Together: The Annulment Crisis in American Catholicism 46–65 (Oxford U. Press 1998)Google Scholar (arguing that tribunals in the United States have in general adopted a liberal “pastoral approach” to annulments which does not respect the intent of the canonical legislation).

192. Urrutia, Francisco Javier, Internal Forum—External Forum: The Criterion of Distinction, in Vatican II: Assessment and Persepctives Twenty-Five Years After (1962–1987) vol. 1, 634 (Latourelle, René ed., Paulist Press 1988)Google Scholar (discussing the theological and canonical criteria for the distinction between the fora).

193. CIC-1983, Canon 983 § 1 (“The sacramental seal is inviolable. Accordingly, it is absolutely wrong for a confessor in any way to betray the penitent, for any reason whatsoever, whether by word or in any other fashion.”).

194. CIC-1983, Canon 1388 § 1 (“A confessor who directly violates the sacramental seal[ ] incurs a latae sententiae excommunication reserved to the Apostolic See; he who does so only indirectly is to be punished according to the gravity of the offence.”).

195. CIC-1983, Canon 985:

The director and assistant director of novices, and the rector of a seminary or of any other institute of education, are not to hear the sacramental confessions of their students resident in the same house, unless in individual instances the students of their own accord request it.

Canon 246 § 4 requires that seminarians and novices be free to choose their own spiritual directors.

196. Tierney, supra n. 163, at 171 (The medieval canonists' attention to the language of fundamental rights and responsibilities was not focused on individual subjectivity. Recognizing the essentially social nature of the human being, the canonists discussed ius naturale in the context of communities and corporate groups. They defended certain fundamental rights through the use of natural law concepts. The rights to private property, marriage, procedural safeguards in litigation, free consent to agreements and privacy of conscience in the internal forum were among those natural rights that helped to define of the social order of the medieval world. The canonists drew charters of rights to be exercised by local communities, guilds, colleges, churches and the emerging city-states.).

197. Summa Theologica, supra n. 15, at I-II, 90, 4, c. (defining law as an “ordinance of reason for the common good, made by him who has care of the community, and promulgated”).

198. Gaudium et Spes, supra n. 14, at 927–928.

199. Pursuant to contemporary Catholic social teaching, such participation is only possible in those subsidiary structures that facilitate the formation of genuine community. In Catholic social thought, subsidiary structures are considered a necessary condition for the creation of community. Moreover, it is recognized that the human person, as a social being, gravitates for authentic fulfillment to such subsidiary structures. Pope Pius XI formulated what has become the classic statement of the principle of subsidiarity. Pius, Pp. XI, “Litterae Encyclicae Quadragesimo Anno (Die 15 m. maii a. 1931),” 23 MS 177 (1931)Google Scholar.

200. Wojtyla, supra n. 15, at 278 (“Within the community we find the human being, with all his dynamism, as one of its members… ‘society’ objectivizes the community or a number of mutually complementary communities.”).

201. John Paul II. supra n. 46, at 31–34 (describing the movement from trust in knowledge acquired by others to Christian faith).

202. Hervada, J., Commentary on Book II, in Code of Canon Law Annotated: Latin-English Edition of the Code of Canon Law and English-Language Translation of the 5^th Spanish-Language Edition of the Commentary Prepared under the Responsibility of the Instituto Martin de Azpilcueta 185 (Caparros, Ernest, Thériault, Michel & Thorn, Jean eds., Wilson & Lafleur Limitée 1993)Google Scholar (discussing the principles of radical equality and variety as the two basic principles of Book II of the CIC-1983).

203. CIC-1983, Canon 208 (“Flowing from their rebirth in Christ, there is a genuine equality of dignity and action among all of Christ's faithful. Because of this equality they all contribute, each according to his or her own condition and office, to the building up of the Body of Christ.”).

204. CIC-1983, Canon 330 (“Just as, by the decree of the Lord, Saint Peter and the rest of the Apostles form one College, so for a like reason the Roman Pontiff, the successor of Peter, and the Bishops, the successors of the Apostles, are united together in one.”). According to Catholic belief, Christ originally entrusted the faith to the Twelve Apostles with the mission to teach, sanctify and govern. CIC-1983, Canon 331 focuses on the divine institution of the Petrine ministry as the head of “the College of Bishops, the Vicar of Christ, and the Pastor of the universal Church here on earth.”

205. CIC-1983, Canon 375 § 1 (“By divine institution, Bishops succeed the Apostles through the Holy Spirit who is given to them. They are constituted Pastors in the Church, to be the teachers of doctrine, the priests of sacred worship and the ministers of governance.”).

206. Dogmatic Constitution on the Church, “Lumen Gentium,” in Vatican Council II: The Conciliar and Post Conciliar Documents 350, 381–387 (Flannery, Austin ed., Liturgical Press 1992)Google Scholar (teaching that the hierarchical offices of bishop and priest are ministerial examples of the self-emptying of Christ, which is the example for all Christians; St. Bonaventure, Lignum Vitae 7, in 8 Doctoris Seraphici S. Bonaventurae opera omnia, edita studio et cura pp. Collegii a S. Bonaventura 72 (Quaracchi ed. 1882) (“So complete was his humility, that He who was perfect justice subjected himself to the Law.”).

207. CIC-1983, Canon 369 (second emphasis added):

A diocese is a portion of the people of God, which is entrusted to a Bishop to be nurtured by him, with the cooperation of the presbyterium, in such a way that, remaining close to its pastor and gathered by him through the Gospel and the Eucharist in the Holy Spirit, it constitutes a particular Church. In this Church, the one, holy, catholic and apostolic Church of Christ truly exists and functions.

Dulles, Avery, The Catholicity of the Church 131–133 (Clarendon Press 1985)Google Scholar (discussing the marks of the Church).

208. CIC-1983, Canon 515 § 1 (“A parish is a certain community of Christ's faithful stably established within a particular Church, whose pastoral care, under the authority of the diocesan Bishop, is entrusted to a parish priest as its proper pastor.”).

209. CIC-1983, Canon 529 § 2 (“The parish priest is to recognise and promote the specific role which the lay members of Christ's faithful have in the mission of the Church…”).

210. CIC-1983, Canon 519:

The parish priest is the proper pastor of the parish entrusted to him. He exercises the pastoral care of the community entrusted to him under the authority of die diocesan Bishop, whose ministry of Christ he is called to share, so that for this community he may carry out the offices of teaching, sanctifying and ruling with the cooperation of other priests or deacons and with the assistance of lay members of Christ's faithful, in accordance with the law.

211. CIC-1983, Canon 528 § 1 (“The parish priest has the obligation of ensuring that the word of God is proclaimed in its entirety to those living in the parish.”); § 2 (“The parish priest is to take care that the blessed Eucharist is the centre of the parish assembly of the faithful. He is to strive to ensure that Christ's faithful are nourished by the devout celebration of the sacraments…”); Canon 529 § 1, infra, n. 212; and Janicki, Joseph A., Parishes, Pastors and Parochial Vicars, in The Code of Canon Law: A Text and Commentary 415 (Coriden, James A., Green, Thomas J. & Heintschel, Donald E. eds., Paulist Press 1985)Google Scholar (identifying the parish priest as the Minister of Word, Sacrament and Pastoral Charity).

212. CIC-1983, Canon 529 § 1:

So that he may fulfil his office of pastor diligently, the parish priest is to strive to know the faithful entrusted to his care. He is therefore to visit their families, sharing especially in their cares, anxieties, and sorrows, comforting them in the Lord. If in certain matters they are found wanting, he is prudently to correct them. He is to help the sick and especially the dying in great charity, solicitously restoring them with the sacraments and commending their souls to God. He is to be especially diligent in seeking out the poor, the suffering, the lonely, those who are exiled from their homeland, and those burdened with special difficulties. He is to strive also to ensure that spouses and parents are sustained in the fulfillment of their proper duties, and to foster the growth of christian life in the family.

213. CIC-1983, Canon 529 § 2:

The parish priest is to recognise and promote the specific role which the lay members of Christ's faithful have in the mission of the Church, fostering their associations which have religious purposes. He is to cooperate with his proper Bishop and with the presbyterium of the diocese. Moreover, he is to endeavor to ensure that the faithful are concerned for the community of the parish, that they feel themselves to be members both of the diocese and of the universal Church, and that they take part in and sustain works which promote this community.

214. Renken, John A., Parishes and Pastors in New Commentary on the Code of Canon Law 673, 676 (Beal, John P., Coriden, James A. & Green, Thomas J. eds., Paulist Press 2000)Google Scholar (“The parish is a part of the particular church, not an autonomous entity.”); and Coriden, James A., The Parish in Catholic Tradition: History. Theology and Canon Law 101–103 (Paulist Press 1997)Google Scholar (discussing the parish as part of the diocese).

215. CIC-1983, Canons 368, 369 (confirming that the universal church is present and operative in the particular churches located throughout the world, each of which is presided over by a bishop, and that the parish community is entrusted to the pastoral care of a priest, who cooperates in the apostolic ministry of the bishop, to mediate the economy of salvation to the members of the local community).

216. Ratzinger, supra n. 119, at 843 (indicating about communio that the Church is greater than the sum of its parts). A debate has ensued between Cardinal Ratzinger and Cardinal Walter Kasper concerning the autonomy of the local churches especially, as expressed in pastoral practices. For a summary of this discussion, see Kasper, Walter, On the Church America 8 (04 23–30, 2001)Google Scholar (arguing for greater flexibility) and Ratzinger, Joseph, The Local Church and the Universal Church America 7 (11 19, 2001)Google Scholar (stressing the unity of the Church in the centrality of the universal Church).

217. Wojtyla, supra n. 15, at 280–281 (discussing participation in the community and the common good).

218. Id. at 296–297 (identifying the roots of alienation).

219. Id. at 281–282 (discussing “personalism” in reference to the common good).

220. Id. at 122 (describing the function of free will in self-possession and human action).

221. Pius, Pp. XII, “Litterae Encyclicae Mystici Corporis Christi (Die 29 m. iunii a. 1943),” 35 AAS 193–248 (1943)Google Scholar (teaching about the nature of the Church through the image of the Mystical Body of Christ); and Tierney, supra n. 163, at 164 (discussing the importance to the image of the Mystical Body in the medieval church and law).

222. St. Bonaventure, De triplica Via, alias Incendium amoris ch. 3, § 3, in 8 Doctoris Seraphici S. Bonaventurae opera omnia, edita studio et cura pp. Collegii a S. Bonaventura 14 (Quaracchi ed. 1882) (“All things are manifested in the cross.”).

223. St. Bonaventure, Lignum Vitae, 7, in 8 Doctoris Seraphici S. Bonaventurae opera omnia, edita studio et cura pp. Collegii a S. Bonaventura 72 (Quaracchi ed. 1882) (locating the origins of the Church in the blood and water of Christ's wounded side).

224. Lumen Gentium, supra n. 206, at 2, 3 & 4 (describing the kenotic self-emptying of the triune God to the sending of the Incarnate Word into human history to the mission of the Church).

225. I Cor 10:17. See Tierney, supra n. 4, at 70, n. 90, citing D. 86 c. 21; D. 42 ante c. 1; C. 12 q. 1 c. 2; and D. 47 c. 8 (The medieval canonists recognized as a requirement of membership that the rich share at least from their abundance with the poor. They crafted statements of binding moral obligations such as: “Feed the poor. If you do not feed them you kill them”; “A man who keeps more for himself than he needs is guilty of theft”; “The use of all things that are in the world ought to be common to all”; and “No one may call his own what is common, of which if he takes more than he needs, it is obtained by violence…. The bread that you hold back belongs to the needy, the clothes that you store away belong to the naked.”); and Tierney, Brian, Origins of Natural Rights Language: Texts and Contexts, 1150–1250, in Rights, Laws and Infallibility in Medieval Thought 639 (Variorum 1997)Google Scholar.

226. Summa Theologica, supra n. 15, at I-II, 81, 1 (“According to the Catholic Faith we are bound to hold that the first sin of the first man is transmitted to his descendants by way of origin.”); and von Balthasar, supra n. 14, at 87–101 (discussing the effect of original sin as humanity's inability to accept divine love, which love offers the only hope for human wholeness).

227. Summa Theologica, supra n. 15, at 1–11, 83, 2 (stating that original sin causes disorder in the soul, first reaching the will and then proceeding to the intellect).

228. Von Balthasar, supra n. 14, at 207 (suggesting that the fallen nature of the intellect and will are still capable of producing reason and freedom but not the ultimate act of self-transcendence without supernatural assistance).

229. Summa Theologica, supra n. 15, at I-II, 109, 1–2 (The first article posits that the person may know the truth through natural means, but needs grace to know truth which surpasses natural knowledge. The second article states that the disordered nature of the human person after the Fall is in need of grace in order to desire an act for the good); and Gilson, supra n. 15, at 343 (“Grace does not suppress nature… so also theology does not suppress philosophy… they add to them and they bring them to perfection.”).

230. Song, Robert, Christianity and Liberal Society 219 (Clarendon Press 1997)Google Scholar (discussing the loss of transcendence and the burden it places on “earthly politics”); and Corecco, supra n. 2, at 134 (“[C]anon law goes to the very level of the ultimate and supernatural destiny of human beings and their salvation.”).

231. CIC-1983, Canon 1752 (“In cases of transfer, the provisions of can. 1747 are to be applied, always observing canonical equity and keeping in mind the salvation of souls, which in the Church must always be the supreme law.”).

232. D. 1, c. 7; and Amen, Maurice, Canonical Equity Before the Code, 33 Jurist 256, 266 (1973)Google Scholar (Equity for Gratian meant that which would constitute the supreme ideal of justice.).

233. Commentaria in V Decretalium Libros, I, c. 11, X, De transactionibus, I, 36 (1581); and Lefebvre, Charles, Natural Equity and Canonical Equity, 8 Natural L. Forum 122, 123 (1963)Google Scholar (Hostiensis attributed the phrase to St. Cyprian.).

234. Lefebvre, supra n. 233, at 123 (suggesting that canonical equity's “Christian impress” distinguishes it from natural equity); Lefebvre, Charles, Hostiensis, maître de l'equite canonique, 28 Ephemerides Iuris Canonici 11–20 (1972)Google Scholar (attributing the special characteristics of the canonical equity to Hostiensis); and Coughlin, John J., Canonical Equity, 30 Studia Canonica 403, 406–418 (1996)Google Scholar (comparing Hostiensis' notion of canonical equity to that of natural equity in the thought of St. Thomas and Suarez).

235. Lefebvre, Charles, Equity in Canon Law, in Equity in the World's Legal Systems: A Comparative Study 94–103 (Newman, Ralph A. ed., Etablissements Emile Bruylant 1973)Google Scholar (comparing the functions of written and unwritten equity).

236. CIC-1983, Canon 19 (emphasis added):

If on a particular matter there is not an express provision of either universal or particular law, nor a custom, then, provided it is not a penal matter, the question is to be decided by taking into account laws enacted in similar matters, the general principles of law observed with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned authors.

237. CIC-1983, Canon 221 § 2 (a judge must apply the law in accord with equity); Canon 271 § 3 (natural equity must be observed in an agreement between bishops to move a cleric from one diocese to another); Canon 686 § 3 (equity and charity must be observed in imposing exclaustration on a religious); Canon 702 § 2 (equity and evangelical charity must be observed by a religious community in providing financial assistance to a member who has been dismissed); Canon 1148 § 3 (urging justice, Christian charity and natural equity concerning the wives of a man, in a polygamous marriage, who receives baptism); and Canon 1752 (requiring the application of canonical equity to the transfer of a pastor).

238. Lefebvre, Charles, Équité, in Dictionnaire de Droit Canonique vol. 5, 394 (Letouzey et Ané 1953)Google Scholar (Canonical equity supplements and corrects the strict application of the law when it would conflict with the equitable characteristics of the mind of the lawgiver.).

239. Örsy, supra n. 9, at 60–63 (discussing canonical equity as an interpretative principle).

240. CIC-1983, Canon 17 (emphasis added):

Ecclesiastical laws are to be understood according to the proper meaning of the words considered in their text and context. If the meaning remains doubtful or obscure, there must be recourse to parallel places, if there be any, to the purpose and circumstances of the law, and to the mind of the legislator.

241. Summa Theologica, supra. 15, at I-II, 96, 6 (When the enemy is in pursuit of the defenders of a besieged city, equity would permit the opening of the city gates, contrary to the strict application of law, as such an interpretation comports with the general welfare of the city and the mind of the lawgiver.).

242. Lefebvre, supra n. 132, at 100 (describing the presumed characteristics of the mind of the lawgiver to be reasonable and humane).

243. Örsy, supra n. 9, at 60 (“[C]anon law must always remain fully integrated with, and dependent on, religious and human values.”).

244. Helmholz, supra n. 4, at 395 (concern for salus animarum was one of the principal characteristics of medieval canon law).

245. In addition to the canonical provisions discussed in this paragraph above, see CIC-1983, Canon 865 § 2 (an adult in danger of death, who has manifested in some way the desire, may be baptized even with only some knowledge of the principal truths of the faith); Canon 867 § 2 (an infant in danger of death is to be baptized immediately); Canon 868 § 2 (an infant in danger of death is baptized licitly, even if the Catholic or non-Catholic parents are opposed to it); Canon 891 (a minor in danger of death who has not reached the age of discretion may be confirmed in the Latin Church); Canon 883, 3° (any priest may administer the Sacrament of Confirmation in a danger of death situation); Canon 913 § 2 (in danger of death, even a child who has not been prepared through catechesis may receive first communion as long as the child is able to distinguish the Eucharist from ordinary food); Canon 921 § 2 (a person in danger of death may receive the Eucharist even when they have previously partaken of the Sacrament on the same day); Canon 961 § 1 (a priest may administer general absolution when there is danger of death and there is no time to hear the individual confessions of the penitents, such as in the case of war or other extreme emergency); Canon 977 (a priest may validly absolve an accomplice, who is in danger of death, of a sin against the sixth commandment of the Decalogue); Canon 1068 (in the absence of any contrary indications, it is sufficient that the parties, who desire to be married and are in danger of death, assert the lack of impediments to their celebration of Matrimony); Canon 1079 §§ 1–3 (establishing the conditions when the bishop, parish priest or confessor may dispense parties in danger of death from ecclesiastical impediments to Matrimony); and Canon 1116 § 1, 1° (when the requisite sacred minister cannot be present or approached without grave inconvenience, persons in danger of death may enter into marriage as long as there are two witnesses).

246. CIC-1983, Canon 529 § 1 (emphasis added):

So that he may fulfil his office of pastor diligently, the parish priest is to strive to know the faithful entrusted to his care. He is therefore to visit their families, sharing especially in their cares, anxieties and sorrows, comforting them in the Lord. If in certain matters they are found wanting, he is prudently to correct them. He is to help the sick and especially the dying in great charity, solicitously restoring them with the sacraments and commending their souls to God. He is to be especially diligent in seeking out the poor, the suffering, the lonely, those who are exiled from their homeland, and those burdened with special difficulties. He is to strive also to ensure that spouses and parents are sustained in the fulfillment of their proper duties, and to foster the growth of christian life in the family.

247. CIC-1983, Canon 844 § 4:

If there is a danger of death or if, in the judgement of the diocesan Bishop or of the Bishops' Conference, there is some other grave and pressing need, catholic ministers may lawfully administer these same sacraments to other christians not in full communion with the catholic Church, who cannot approach a minister of their own community and who spontaneously ask for them, provided that they demonstrate the catholic faith in respect of these sacraments and are properly disposed.

248. CIC-1983, Canon 1335:

If censure prohibits the celebration of the sacraments or sacramentals or the exercise of a power of governance, the prohibition is suspended whenever this is necessary to provide for the faithful who are in danger of death. If a latae sententiae censure has not been declared, the prohibition is also suspended whenever one of the faithful requests a sacrament or sacramental or an act of the power of governance; for any just reason it is lawful to make such a request.

249. CIC-1983, Canon 976 (“Any priest, even though he lacks the faculty to hear confessions, can validly and lawfully absolve any penitents who are in danger of death, from any censures and sins, even if an approved priest is present.”).

250. CIC-1983, Canon 1736 § 2:

In others [sic] cases, unless within ten day [sic] of receiving the petition mentioned in can. 1734 the author of the decree has decreed its suspension, an interim suspension can be sought from the author's hierarchical Superior. This Superior can decree the suspension only for serious reasons and must always take care that the salvation of souls suffers no harm.

CIC-1983, Canon 1737 §3:

Even in those cases in which recourse does not by law suspend the execution of the decree, or in which the suspension is decreed in accordance with can. 1736 § 2, the Superior can for a serious reason order that the execution be suspended, but is to take care that the salvation of [souls] suffers no harm.

251. CIC-1983, Canon 1752 (“In cases of transfer, the provisions of can. 1747 are to be applied, always observing canonical equity and keeping in mind the salvation of souls, which in the Church must always be the supreme law.”).

252. CIC-1983, Canon 747 § 2 (“The Church has the right always and everywhere to proclaim moral principles, even in respect of the social order, and to make judgements about any human matter in so far as this is required by fundamental human rights or the salvation of souls.”).

253. CIC-1983, Canon 978 § 1 (“In hearing confessions the priest is to remember that he is at once both judge and healer, and that he is constituted by God as a minister of both divine justice and divine mercy, so that he may contribute to the honour of God and the salvation of souls.”).

254. Song, supra n. 230, at 219 (“Without an eschatology which transcends and fulfils history, the human aspiration for permanence and stability may translate itself into the project of seeking the Kingdom of God on earth.”).

255. Ioannes Paulus Pp. II, Sacra Disciplinae Leges, supra n. 1, at 51 (“[T]he purpose of the Code is not in any way to replace faith, grace, charisms, and above all charity in the life of the Church or of Christ's faithful.”).

256. Id.:

[T]he Code rather looks toward the achievement of order in the ecclesial community, such that while attributing a primacy to love, grace and the charisms, it facilitates at the same time an orderly development in the life both of the ecclesial society and of the individual persons who belong to it.

257. Michelman, Frank I., Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 Ind. L.J. 145, 148–149 (1977)Google Scholar (posing the question by contrasting a “public-interest model” with an “economic or public choice model.” The former “depends… on a belief in the reality of public or objective values and ends for human action,” while the latter regards “all substantive values or ends as strictly private and subjective.”).

258. Fuller, Lon L., The Morality of Law 153 (Yale U. Press 1964)Google Scholar (“In presenting my analysis of the law's internal morality I have insisted that it is, over a wide range of issues, indifferent toward the substantive aims of law and is ready to serve a variety of such aims with equal efficacy.”).

259. Id. at 46-94 (discussing the qualities that render an internal objectivity to the rule of law).

260. George, supra n. 64, at 113 (“[T]he strict observance of legal forms by such rules cannot guarantee that the laws… will not be substantively unjust.”).

261. American Legal Realism xiii–xiv (Fisher, William W. III, Horwitz, Morton J. & Reed, Thomas A. eds., Oxford U. Press 1993)Google Scholar (“The heart of the [Legal Realist] movement was an effort to define and discredit classical legal theory and practice and to offer in their place a more philosophically and politically enlightened jurisprudence.”); and Schlegel, John Henry, American Legal Realism and Empirical Social Science 8 (U.N.C. Press 1995)Google Scholar (noting the Realists' focus on empirical legal research and their attempt to convert policy preferences into law).

262. Holmes, Oliver Wendell Jr., The Common Law 1–2 (Little, Brown 1923)Google Scholar (“The life of the law has not been logic: it has been experience. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient.”); Holmes, Oliver Wendell Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461–462 (1897)Google Scholar; and Llewellyn, Karl N., The Bramble Bush, On Our Law and Its Study 12 (Oceana Publications 1951)Google Scholar (“It is much more common to approach the law as being a set of rules of conduct, and most thinkers would say rules of external conduct to distinguish them from the rules of morality.”).

263. Rumble, Wilfrid E. Jr., American Legal Realism: Skepticism, Reform, and the Judicial Process 48–55 (Cornell U. Press 1968)Google Scholar (describing the realists skepticism about the formal rules of the common law tradition); and cf. Horwitz, Morton J., The Transformation of American Law, 1780–1860: The Crisis of Legal Orthodoxy 30 (Harv. U. Press 1977)Google Scholar (suggesting that by 1820 the shift in American jurisprudence from an understanding of law “as an eternal set of principles expressed in custom and derived from natural law” to an understanding of law as an “instrument of policy” was well underway).

264. Pound, Roscoe, The Need for a Sociological Jurisprudence, 19 Green Bag 607, 611 (1907)Google Scholar (“The modern teacher of law should be a student of sociology, economics, and politics as well.”); and American Legal Realism, supra n. 261, at 232–236 (discussing legal realism and the sociological jurisprudence).

265. Hart, H.L.A., The Concept of Law 113 (Oxford U. Press 1961)Google Scholar (“[R]ules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.”).

266. Id. at 105:

Statements of legal validity made about particular rules in the day-to-day life of a legal system whether by judges, lawyers or ordinary citizens do indeed carry with them certain presuppositions. They are internal statements of law expressing the point of view of those who accept the rule of recognition of the system.

267. Dworkin, supra n. 39, at 17 (describing law as “a set of special rules identified and distinguished by specific criteria, by tests having to do not with their content but with their pedigree or the manner in which they were adopted or developed.”); and Soper, E. Philip, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 Mich. L. Rev. 473, 474–475 (1977)CrossRef Google Scholar (describing the difference between the positions taken by Hart and Dworkin).

268. Dworkin, Ronald, Law's Empire 256 (Belknap Press Harv. U. Press 1986)Google Scholar (“Different judges will disagree about each of these issues [of interpretations of precedent in difficult cases] and will accordingly take different views of what the law of their community, properly understood, really is.”).

269. George, Robert P., What is Law? A Century of Arguments, First Things 23, 29 (04 2001)Google Scholar (discussing the importance of the “objectivity” of law).

270. John Paul II, supra n. 80, at 96.

271. E.g. Rawls, supra n. 43, at 781 (asking whether it is even possible “for citizens of faith to be wholehearted members of a democratic society who endorse society's intrinsic political ideals and values”); and Rawls, John, Political Liberalism 147–149 (Colum. U. Press 1996)Google Scholar (defining public reason as an “overlapping consensus,” and arguing that political power may not be exercised on the basis of controversial religious values). Cf. Song, supra n. 230, at 225–226 (suggesting that revelation offers a theological critique of liberalism); and Weithman, Paul J., Citizenship and Public Reason 125, in Natural Law and Public Reason 156–162 (George, Robert P. & Wolfe, Christopher eds., Georgetown U. Press 2000)Google Scholar (rejecting John Rawl's position that citizens in the public forum ought not to make appeals to religious comprehensive world views).

272. Neal, Patrick, Political Liberalism, Public Reason, and the Citizen of Faith, in Natural Law and Public Reason 171, 177–178 (George, Robert P. & Wolfe, Christopher eds., Georgetown U. Press 2000)Google Scholar (criticizing Rawls for not recognizing that persons with comprehensive religious worldviews may dissent from the doctrines of political liberalism, not on selfish grounds, but because they believe the liberal doctrine to be morally wrong).

273. Rawls, Political Liberalism, supra n. 271, at 243:

What public reason asks is that citizens be able to explain their vote to one another in terms of a reasonable balance of public political values, it being understood by everyone that of course the plurality of reasonable comprehensive doctrines held by citizens is thought by them to provide further and often transcendent backing for those values.

274. Perry, Michael J., The Idea of Human Rights, Four Inquiries 11–41 (Oxford U. Press 1998)Google Scholar (suggesting that human rights language must ultimately rest on a religious foundation).

275. Rawls, Political Liberalism, supra n. 271, at 137 (arguing that the liberal principle of legitimacy requires that questions of basic justice and constitutional law need to be settled by principles and ideals upon which all citizens may be reasonably expected to endorse).

276. Rawls, supra n. 39, at 76–80 (describing the difference principle as requiring distribution to the least advantaged).

277. Summa Theologica, supra n. 15, at II-II, 61, 1 (describing distributive justice); Gaudium et Spes, supra n. 14, at 975–976 (discussing the need for distributive justice in society for the just distribution of material goods); and Finnis, supra n. 63, at 165–177 (describing distributive justice from a philosophical perspective with notations to Catholic theology and social teaching).

278. E.g. Gaudium et Spes. supra n. 14, at 972–973 (recognizing the right to work and to remuneration that affords a dignified livelihood for individuals and families).

279. John Paul II, supra n. 80, at 32 (“The individual conscience is accorded the status of a supreme tribunal of moral judgment which hands down categorical and infallible decisions about good and evil.”).

280. Waite, Linda J. & Gallagher, Maggie, The Case for Marriage: Why Married People are Happier, Healthier, and Better Off Financially 10 (Doubleday 2000)Google Scholar (indicating that married persons, who have not been divorced, and their children tend to be better off in terms of physical and emotional health as well as financial status than divorced spouses and their progeny); and Wallerstein, Judith, Lewis, Julia & Blakeslee, Sandra, The Unexpected Legacy of Divorce: A 25 Year Landmark Study 294–316 (Hyperion 2000)Google Scholar (on the basis of a twenty-five year longitudinal study of divorce, concluding that the “divorce culture” yields long term negative consequences for individuals, families and society).

281. Waite & Gallagher, supra n. 280, at 187–188, citing Bureau of the Census, Statistical Abstract of the United States: 1997 Table 145 (117th ed. 1997) (noting the statistical indication that during the last years of the twentieth century the national divorce rate has leveled-off at approximately fifty percent of all marriages and may be slightly declining).

282. 381 U.S. 479 (1965).

283. 405 U.S. 438 (1972).

284. 410 U.S. 113(1973).

285. In Bowers v. Hardwick, 478 U.S. 186 (1986), the majority of the Court refused to extend the privacy right to homosexual activity in that such activity was neither “implicit in the concept of ordered liberty,” nor “deeply rooted in this Nation's history and tradition.” By a five to four vote, the Supreme Court reversed its holding in Bowers, in the 2003 case Lawrence v. Tex., 123 S.Ct. 2472 (2003).

286. Lasch, Christopher, Haven in a Heartless World: The Family Besieged 146–147, 188–189 (Basic Books 1995)Google Scholar (arguing that excessive individualism weakens the family and consequently undermines one of the principal sources of societal cohesion).

287. The trend toward redefinition of marriage through the recognition of the legal right was apparent in Baker v. Vt., 744 A.2d 864 (Vt. S.Ct. 1999), where the Vermont Supreme Court held that a same-sex couple may not be deprived of the statutory benefits and protections afforded to heterosexual married couples pursuant to the Common Benefits Clause of the Vermont Constitution. In Goodridge v. Dept. of Pub. Health, 2003 WL22701313 (Mass. 2003), the highest court in Massachusetts held that prohibiting the granting of marriage licenses to same-sex couples violated the Commonwealth's constitution.

288. Summa Theologica, supra n. 15, at I-I, 95, 1 & 2 (discussing creation of the human person in the state of grace lost through sin); and Gilson, supra n. 15, at 176 (referring to the “radical metaphysical optimism” of St. Thomas's understanding).

289. Berman, supra n. 5, at 166–185 (describing the Judeo-Christian theological doctrines of original sin, judgment and atonement and their implications for Western law).

290. Von Balthasar, supra n. 25, at 105–119 (describing how early Christian thinkers conceived of the private ownership of property as a consequence of the Fall until Thomistic thought gradually replaced this historical notion of natural law with one based upon a more abstract concept of nature).

291. Song, supra n. 230, at 219 (“Without an eschatology which transcends and fulfils history, the human aspiration for permanence and stability may translate itself into the project of seeking the Kingdom of God on earth.”).

292. Id. at 218–219 (describing the “religion of progress” as the “manic reaction to the despair” of modern society that has lost the transcendent).

293. This is not to suggest that only a negative definition of human freedom is operative in liberal theory. In his highly regarded statement of liberal theory, John Rawls argues in favor of distributive justice. Rawls, supra n. 39, at 310–315 (arguing that in a well-ordered society, “a just scheme gives each person his due”).

294. According to the principle of subsidiarity of Catholic social teaching, the state ought not to appropriate to itself that which can be accomplished by smaller natural associations of individuals, groups and communities. For the classic statement of the principle, see PopePius, XI, Quadragesimo Anno, in Seven Great Encyclicals 125, 147 (Gibbons, William J. ed., Paulist Press 1963)Google Scholar.

295. E.g. Nozick, supra n. 39, at 167–174 (arguing against distributive justice in the liberal state on the ground that once anyone has justly acquired property it would be unjust for the State to deprive the property holder for the purpose of aiding other persons).

296. E.g. von Balthasar, supra n. 14, at 275–304 (discussing the Christian Mysteries of death and resurrection as the paradigm of self-sacrifice).

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Canon Law and the Human Person

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