Canon Law in the “Century of the Individual”: Revolution and Continuity

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Das Altkatholische Kirchenrecht

Concerning Sohm’s posthumous Das altkatholische Kirchenrecht,18 Stanley Chodorow once noted: "It almost seems as if Sohm planned the piece as a time bomb that would go off when he was well out of the way...." In the dedicatory preface to his colleague Adolf Wach, we discover a little about Sohm's motivations. He called his 600-page work a Vorarbeit--an understatement speaking volumes about this heroic age of scholarship--towards the planned second volume of his Kirchenrecht. His voice was defiant:19
I know from experience, that it is not easy to fight against the natural law of the Enlightenment, which still dominates without opposition our conception of canon law. Therefore heavy armor had to be strapped on. What was necessary was the explanation of numerous details foreign to a significant part of our canonistic jurisprudence shaped by "juristic method."
This bold challenge to the positivistic "juristic" methods of the German "historical school" of legal scholarship would earn the sharpest criticism.

Sohm demanded a complete reappraisal of Gratian. This murky figure has always been the great pioneer,20 the bridge- builder between earlier, unscientific sacred tradition to legal system. Sohm took a contrarian view, arguing that Gratian’s Decretum was rather the final masterpiece of non-jurisprudential, non-jurisdictional, "sacramental" law, the ultimate link in a chain first forged around 100 with the passing of the charismatic church. Subsequent commentators like Rufinus of Bologna would take Gratian and transform him through Roman-law jurisprudential terminology into a handbook of jurisdiction in the service of the Roman hierarchy. But this was not what Gratian had intended: Gratian was a theologian, not a lawyer.21

To Sohm, Alexander III and the decretists were the revolutionaries. The decretists, under the spell of Roman law, had first introduced concepts of jurisdiction and corporation into canon law through their commentaries on Gratian's "sacramental" compendium; in 1179 at III Lateran, Alexander III completed this ecclesiological and legal revolution by establishing the principle of a 2/3 majority in papal elections.22 Henceforth the Church would be governed from top to bottom as an institution. In the establishment of a fixed number of sacraments in the same period, Sohm also perceived the transformation of the older, undifferentiated sacramental church into a system shaped by hierarchy, definition, and precision.23 Sohm discovered a chasm between 1140 and 1179, the canyon separating the church of the "old catholic law" and the new built of worldly law by popes and their lawyers.

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