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

No critic has ever equaled Ulrich Stutz, the first reviewer of the Altkatholisches Kirchenrecht. Sohm was scarcely in his grave when Stutz launched his attack.²⁴ Stutz's review is a remarkable mixture of precise, detached criticism, rage at the overall thesis, and occasional bewilderment and grudging admiration at the range and boldness of the work. Stutz's criticism was methodical and thorough. The sources, Stutz found, were superficially used at best, and constantly jammed into the rigid determinative grid of the three-part division of church history first established in the Kirchenrecht.²⁵ Sohm overlooked evidence--for example from the precocious ecclesiological and legal theorists of the Carolingian period--contradicting his thesis that jurisdictional language only appeared in the late-twelfth century. Key concepts like the papal reservation formula salva sedis apostolicae auctoritate--which emerged well before the decretists--were ignored as well.²⁶

Periodically, Stutz's precise attacks turned angry. The most biting are accusations that the work was not history, let alone legal history,²⁷ and references to it as "art" not "history."²⁸ These comments help us understand why Stutz exclaimed:²⁹

How can one maintain that the constitution of the church was placed on the foundation of jurisdictional concepts which produced the hierarchy of jurisdiction only around 1200! This was already true for the ancient church...
How indeed? Sohm had placed theory before the facts, as Stutz saw them, of legal history. Trained in the historicism of the late-nineteenth century, Stutz had been one of those pioneering historians who had first wrested canon law out of the hands of the theologians and made it a self-standing discipline within Geisteswissenschaft. Sohm had ignored the facts³⁰ in order to erect an artful schema in which to place his carefully-chosen evidence; he threatened to destroy everything Stutz and others had built up and, possibly, open the way for dogma to trap canon law.

Down to World War II, critics did their best to shove Sohm outside the canonistic mainstream. Franz Gillmann busied himself with destroying various details of Sohm's thesis, such as his contention that the division of Gratian's Decretum into distinctiones and causae was not original and was instead a later creation by the decretists to transform the "sacramental" work into a jurisdictional handbook. Gillmann demonstrated that the early decretists, yet another source barely considered by Sohm, had already recognized these divisions in the Decretum.³¹ Others, took on the broader plan of Sohm's work, and argued, following Stutz, that he had abandoned evidence and "juristic method"³² for piety and dogma.³³

While Sohm was being thrust into the outer darkness of canonical studies, he was embraced--cautiously--by theological apologists. The first was, in fact, a canonist by training, Hans Barion, whose inaugural lecture at Bonn launched a vigorous defense of Sohm's system. Barion attacked Stutz and his followers by referring to their judgment of Sohm's thesis as a "sin against the Holy Spirit."³⁴ He denied that "piety" somehow had blinded Sohm; rather, he argued, piety is at the heart of any serious discussion of the church, while a supposedly rational "juristic method" was utterly out of place.³⁵ Before any discussion of law must come ecclesiology, the message at the heart of Sohm's thesis.³⁶ To Barion, Sohm created a system that cannot be taken apart piecemeal,³⁷ a system that only theologians can only really understand:³⁸

The building of canon law demands the hand of the jurist, but only a theologian can lay its foundation. The purpose of my essay has been achieved, if I have shown that Sohm's thesis concerning the foundations of canon law lies not in but before his arguments.
With this eloquent apology, Sohm's view of twelfth-century canon law, his analysis of Gratian and his commentators, passed from the field of view, eclipsed by his ecclesiology. In the postwar period, Sohm's ecclesiological theories have continued to attract theologians, not jurists.³⁹ They play a role even in contemporary discussions of church and state.⁴⁰

Despite much effective criticism, it seems that Sohm, however wrong he was in both argument and evidence, still stimulates reflection on canon law in the twelfth century. We must also remember that, for all their reasoned, convincing arguments, Sohms critics had their own prejudices. Many fashioned their own turning point in the twelfth century: a belief that scholastic canon law quickly triumphed in the legal culture of the church. By gazing solely at Gratian and the schoolmen schools, they overlooked other settings, for example monastic houses, where both the new canon law and older, non-scholastic works continued to be read.

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