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Recensions - Book Reviews .......................................................... 487

Notes biographiques- Biographical Notes ................................ 495

Index, Volume XIII.......................................................................... 497

Lonergan's Cognitional Theory and Foundational Issues in Canon Law

Method, Philosophy and Law, Theology and Canon Law

INTRODUCTION

1. The origin and purpose of this article

In 1972 Bernard Lonergan published his book, Method in Theology. In parts, he completed his study of human understanding expounded in Insight; in parts, he broke new ground by applying his all-embracing theory of the process of knowing and deciding to the fundamental issue of method.1 Theologians the world over responded to the book, some positively, some negatively, as could be expected. All agreed, however, that its publication was an im-portant event and that, for a long time to come, they will have to struggle with the questions that Lonergan raised, whether they accept or reject his solutions. 2

We have come to the opinion that the account that Insight and Method give concerning the human process of knowing is as

1 See Bernard LONERGAN, Insight: A Study of Human Understanding (New York: Longmans, 1967) and Method in Theology (New York: Herder, 1972).

2 Among the positive responses, those of Piet Fransen (University of Louvain, Belgium) and B. C. Butler (then of St. Edmund's College, Ware, England) should be 'singled out as most penetrating. Among the reviews with a negative bent (no review was purely negative), those of A very Dulles (then of Woodstock College, New York City) and W. A. Van Roo (Gregorian University, Rome) should be mentioned.

George Vaas and William Mathews (both, then, of Heythrop College, England) presented rather opposing views on the book. See: B. C. BuTLER, "Method in Theology", The Clergy Review, 57 (1972), pp. 579-596. Avery DuLLES, "Method in Theology", Theological Studies, 33 (1972), pp. 553-555. Piet FRANSEN, "How Lonergan Does It", The Month, (1972), No. 233, pp. 229-231. W. A. VAN Roo, "Lonergan's Method in Theology", Gregorianum. 55

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customs, as did many early rules of canon law. The community took care of itself.

Moreover, it would be difficult, if not impossible, to admit the existence of international law if we rigidly adhered to the def-inition by Aquinas. It is a system that rests not only on customs but also on conventions, without any identifiable authority in charge of the family of nations.

28. A treatise on the philosophy of law

In recent years, there has been much talk among canon lawyers about the need for studying the theological foundations of law. We shall say more about this need in the third part of this article, but we mention it in order to make a point more emphatically. There is an equal, or even greater, need to study the philosophical foundations of law. Many issues for which a theological solution is sought can be resolved more expeditiously and properly on the level of philosophical reflection.

But someone may ask: can there be a systematic treatise on the philosophical foundations of canon law? After all, it is a body of laws that specifically originates in religion and has for its avowed purpose the religious welfare of the community - hence, it cannot be explained on philosophical grounds!

The answer is that the raison d'etre of canon law cannot be explained fully with reasons taken from the world of philosophy. But much explaining can and must come from there because the Church is a human community in need of being organized in a human way if it wants to live and operate in this world. And there is no science that can instruct the Church more competently about the role of law in a human society than philosophy. Theo-logical explanations should follow afterwards. 36

36 Law is a natural human reality. It retains its human dimension even in a community that has become signum salutis, sign of salvation. Theology alone cannot, therefore, adequately account for the existence of canon law.

The only correct way of handling the phenomenon of law in the Church is to deal with its philosophical roots and theological significance together, a method that would not have been alien to the great medieval scholastic theo-logians. Indeed, there is no true understanding of the Church unless its human qualities are considered together with the divine gifts bestowed on it.

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PART THREE: THEOLOGY AND CANON LAW

29. Theology of canon law - does it make sense?

Much is said about such a thing as the theology of canon law, but there remains much to be clarified, including the foundational concepts.

At first sight, the very expression "theology of canon law" does not make sense. Theo-logia means "God-talk" or the knowledge of God. Once the Greek word is translated into English and coupled with "canon law" in the genitive, we have a remarkable nonsense: God-talk of canon law!

But, after all, do we not have a theology of work, theology of leisure, and theology of so many other things? So why could we not have the theology of canon law? Let us see, therefore, if we can make some sense out of that expression.

Theology of canon law, taken in a loose sense, may well mean:

a) Reflection on the phenomenon of law in the Church in a general way, in the light of some theological understanding. This is a fairly loose approach that requires some specification. Should the reflection begin with acceptance of the fact that there is law in the Christian community, or should it start with the questioning of any need for law? There can be markedly different points of departure.

b) Reflection on particular legal rules concerning a determined institution of the Church, from a theological point of view, e.g. the rules regulating the conferral of baptism, can be related to the theological understanding of the sacrament.

In either case, the term "theology of canon law" is somewhat clumsy and misleading. In both cases, the researcher is interested in the relationship between a theological reality (Church, baptism) and legal norms that flow from its nature, or simply surround it.

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30. The issue is the relationship between two worlds

What, then, should be the first move of someone who wants to tackle this problem of the so-called theology of canon law? What can he possibly do to make it manageable?

The first step in this enterprise should be to achieve an aware-ness that there are two worlds of meanings: theology and canon law. Then it is easy to understand that to do "theology of canon law,. is to determine, describe, and explain the relationships (in the plural!) between the world of theology and that of canon law. The two worlds are closely related to each other; in fact, in many ways, they overlap and support each other.37

Some preliminary presentation of the world of theology and the world of canon law is necessary in order to discover the relation-ship of the one to the other.

31. The two worlds

What does the world of theology consist of? It consists of those mysteries that we see in the dim light that faith gives us, and whose existence we proclaim in the form of Christian doctrine. This proclamation is usually done in concise lapidary forms, such as the creeds. But, that is not all. As we contemplate the mysteries, we seek to understand them - as far as possible. Thus, we reflect

37 To reduce the two worlds into one is not the right way of doing "theology of law".

Such reduction can happen in two ways: (a) canon law is transformed into theology and its norms are handled

as if they were theological statements; (b). theological realities are described in juridical categories. Neither of these approaches does justice to the distinct character of

theology and law. object of theological reflection is the mystery that no human under-

standmg can. exhaust. Its question is: What is it? Its answer is partial. The object of canonical science is a norm of action that ought to be

perfectly understandable to any reasonably educated Christian. Its question is: What is it that ought to be done? Its answer should be based on law and should leave no mystery behind.

judgments are about ryature and existence of mysteries; canomcal Judgments are about values w1thm the reach of the community

W:riters who, in our judgment, identify theology and law too much Eugem<? Corecco, to say. that canon law is theology; and Hans Domb01s, who uses jundrcal categones to explain mysteries.

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Qn the content of each, and on their mutual connections. Even-tually, we build up a world of critically tested insights around them. These new meanings we affirm not with the strength of faith, but with the strength of our mind enlightened by faith. That is theology proper, expressed in so many learned writings. Fides quE£rens intel/-ectum.

The world of canon law is different. It consists of a system Qf norms of action for the sake of good order in the community. In themselves, the norms would be as bare as skeletons. Canonical science puts flesh on them.

First, there is the science of creating laws, an immense and complex field of activity. The needs of the community are assessed; fitting structures and wise norms are formulated; and, finally, these laws are promulgated for the people to appropriate them.

Then, there is the science of interpretation. It takes its starting point from the meaning conveyed through a text. Ideally, the in-terpreter, through his work, should come to the same mind that the creator of the law had, but, obviously, that is not always the case - nor can it be among living persons. Words and sentences are fragile vehicles for carrying meanings, and, between the point of departure and that of arrival, changes in meanings do occur. Thus, interpretations develop which were neither foreseen nor intended by the legislator.

Finally, there is jurisprudence, the art of prudent application of the law to individual cases in the courts. The general, abstract, impersonal rule of law must be transformed into particular de-cisions to cover concrete cases of individual persons.

Just by briefly looking at these two worlds of theology and canon law, we must realize that they are distinct, but not separate; united, but not fused. The relations between them are multiple and complicated. They should be unraveled with as much care and circumspection as a surgeon would give to the laying bare of the nerves running through the human body.38

38 Ev.ery science is the accumulated result of particular judgments. So are the sCiences of theology and canon law. They are distinct from each other because are. based on different types of insights and judgments.

Theological Judgments are concerned with the nature of mysteries per-

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32. A direct approach

Having before our eyes the two worlds, that of theology and that of law, and wanting to understand how they relate to each other, we can take different approaches.

There is a direct approach. It begins with the acceptance of the Christian community as it has existed historically - with its laws. Such acceptance is not reasoned; it is granted on the strength of belief. The Church, then, is seen as a community having lived consistently, right from the beginning, by laws to protect and promote peace and order in the group. Legal norms are accepted as a natural part of a structured Church. It matters little if the structures were scarce or numerous in a given age, if the norms covered a few aspects of its life or many: they were an integral part of that wholesome reality that was the Church. In this approach, the fact of law in the community is recognized as a permanent feature not subject to change, although, obviously, laws can change, increase or decrease in so many ways.

But, the acceptance of such a bare fact does not satisfy the mind. Even in a humble issue, faith seeks understanding: fides quaerit inte!lectum. Why does the community of believers need laws? If they do, how should they be made? Once made, how should they be interpreted?

This is a direct approach. It contemplates the Church, accepts laws in it as a historical fact. Then it seeks to find the rationale for the use of laws, and tries to detect the internal dynamics of wisdom in using such norms for the life of the group. It is theologiz-ing in oratione recta.

But, this is not the only approach.

ceived by faith. Legal judgments are concerned with values in view of decisions and action. The former focus on the true; the latter on the good.

But, given the unity of our internal processes, the knowledge of God's gifts and the values they bring cannot be separated, and values are appropriated by decisions and actions. Thus, the knowledge of mysteries, that is theology, cannot be separated from norms of action. Rather, norms flow from knowl-edge.

It follows that each science retains its distinctive character - no matter what, they simply cannot be fused into one!

For further explanation of what a legal judgment is, see our essay on "Legal Judgment and Legal Education", in The Jurist, 38 (1978), pp. 1-47.

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33. An indirect approach

An indirect approach to the issue of law in the Church is possible also. It could start with the examination of the usual historical sources, such as early and late Christian writings, pro-nouncements of councils, the practical life of the community, and so forth.

But, the existence of legal norms of action binding the com-munity is not taken for granted, even if they have been there. The fact of having laws is subject to critical examination with a freedom that, eventually, may lead to the conclusion that such norms were not really necessary for the healthy life of the community - they can be dispensed with in the future. Some critics may then go so far as to say that laws are simply incompatible with the nature of the Church of love.

The latter approach has been taken by some writers such as, for instance, Sohm. The problem we see with their understanding is that they proceed all too abstractly. They bypass the historical community. They try to replace a historical fact with a hypothesis.

Moreover, this indirect approach to the issue of law in the Church hides an internal contradiction. On the one hand, the traditions of the community are accepted as authentic in preserv-ing the memories of the Lord, in the Scriptures and in so many other ways; on the other hand, they are rejected as inauthentic whenever the community has created norms, based on those mem-ories, to bring order into its life and to preserve peace among the faithful.

This way of explaining the role of law in the Church is more in oratione obliqua; it certainly does not include any initial com-mitment to law.

34. Distinction between the general issue and particular problems

In investigating the relationship between theology and canon law, a distinction should be acknowledged between the issue taken in a general way, and particular issues that emerge consequently. Let us explain.

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When the world of theology is brought together with the world of canon law without further specifications, the object of reflection is the relation between the two. All considerations move on a general level: theology and law.

Once the nature of the relationship between the two worlds is. understood, it is necessary to turn to particular problems.

There are many institutions in the Church that, in their being, belong to the realm of mysteries yet are surrounded by legal structures. For instance, baptism is a mystery because, through it, a new child of God is born; but the admission to baptism, its administration, and some of its effects are regulated by laws.

Many institutions of the Church are rooted in a mystery, but, for the sake of good order in the community, they need some legal support. For each of these institutions, the relationship between its "theology" and its legally ordered place and function in the community can be explored.

It follows that if ever a book is written about the theological foundations of canon law, it should have two parts: first, the foundations of law in the Church; second, the individual mysteries and the law that gives a framework to each.

35. Some hints for the construction of treatires on the relationship of theology to canon law

We have no intention, here and now, of giving anything like a full treatment to the relationship of theology and canon law. But we wish to point to some directions in which critical research and reflection should go.

Since the directions are multiple, we speak of treatises. The issue can, indeed, be approached in several ways, depending on the starting point and on the particular field or subject that the study intends to cover.

Let us, then, point to those different starting points.

a) There can be a :report on the investigation of the relation-ship between theology and law in oratione obliqua, that is a report by a detached observer. Such a researcher investigates how the

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Christian community construed practical rules grounded in their beliefs. He could take any subject, such as the Church in general, or episcopacy in particular, or baptism in particular, and show the impact of belief on the norms of action.

He could also approach the issue from a historical point of view, and show how the development of doctrine carried with it the development of practices, or, vice versa, how new practices emerged and influenced belief.

To list these tasks is easy, but there is no need to be an expert to realize that we are already pointing to the production of a small library.

b) There is reflection on the relationship between theology and canon law in oratione recta. Its point of departure is diametrically opposed to the other. A committed lawgiver proceeds from the vision of the mystery to the creation of external structures and norms of action, or a committed interpreter understands and explains structures and norms in the context of his belief.

Their operations can focus on different objects. For instance, the legislator must seek a deeper understanding of the mystery of the Church before he can see what the role of law should be in the community. Thus, he should proceed from the experience of the mystery to the formulation of practical norms that should flow from it, a kind of existential theologizing. He could take up a more particular subject, such as episcopacy or baptism. He could reflect on the relationship between those particular mysteries and the norms that should accommodate and support them.

The interpreter could follow the same path, in his own way. a&

39 One way in which an outline of a treatise on the "theological founda-tions of canon law," done by a believer, could be conceived is the following:

Part I: Law in the Church I. A historical report on Christian tradition concerning law in the

community; or, a description of the phenomenon of law throughout the history of the Church. (That is, there should be a collection of data on which reflection will follow.)

2. The questions should be asked: What is law? Why is it there? What is its scope and purpose? (That is, there should be an attempt to understand the historical role of law.)

3. There should be a critically grounded judgment on the role that law

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These are no more than pointers toward different explorations, enough to show why the expression "theology of canon law" can suggest, deceptively we think, that the issue can be handled in one all-encompassing study. In reality, there is much more to it.

CONCLUSION

Whenever a candidate presents himself to defend his doctoral dissertation before the examination board, the first question ad-dressed to him is likely to be: can you tell us briefly what is new in your study? Or, another way: what is it that your work adds to our knowledge?

This, our article, is not a doctrinal dissertation. Nonetheless, to raise the same question in our conclusion is right and just. If the board of readers could speak, that is probably what they would like to see in a summing up.

We are convinced that, from the study of Lonergan's cog-nitional theory, plenty of new insights emerge that can, indeed, enrich our capacity to create new laws and to interpret them in a new way.

Let us see them point by point. 1) New cognitional theory broadens our horizon. If we come

to the awa:reness that all statements in the law referring to the

must play in the community, i.e., its value should be balanced with other values (inspirational, intuitive, etc.)

4. On the basis of previously formulated critical judgment, the present state of law in the Church could be examined. New legislative actions, whether for creating new laws or suppressing old laws, could be proposed.

Part 11: The Laws of Particular Institutions 1. In this part, the institutions of the Church should be taken one by

one, and the relationship between the theological understanding of a given mystery and the actual legislation needed to support it established. Thus, there would be many chapters because there are many institutions, e.g. Ecumenical Council... Diocese... Baptism ... Tribunals ... etc., etc.

2. In the case of each particular approach, three questions should be asked concerning the laws surrounding the institution: a) what are the laws that the existence of the mystery in the community requires by its very nature? b) what are the laws that the mystery does not require but which are there by way of historical accretion? c) how should the present laws be evaluated, and if necessary changed, in the light of the answers given to questions (a) and (b)?

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process by which human persons reach the truth, including the truth of faith, decide to do the right, including what is right for the kingdom's sake, come from one cognitional theory, and we accept that there can be others, as indeed there are, we break out from a confinement where we relied on one school of philos-ophy alone. We see new horizons and we begin to raise new questions.

2) Key words acquire new meanings. Lonergan's cognitional theory gives us a better understanding of the whole process of knowing and deciding. It enriches us with more complex and so-phisticated categories that cover the operations of the human spirit with greater precision. Old terms receive new meanings. Thus, we have a new understanding of what knowledge, error, doubt, ignorance, intention and responsible decision are.

3) A need for revision of our laws arises. From a better un,.. derstanding of the interior operations of the human person, we are bound to reach a better understanding of the legal impacts and effects that can be attributed to his operations. When that happens, a quite radical revision of some of our laws, especially of procedural law, may be necessary.

So, then, there is newness in raising questions about generally accepted notions. There is newness in the revised meaning of old terms. There is newness in the need to revise the legal rules.

4) We are led to a new understanding of what law is. On the basis of a new stage reached in philosophizing that consists primarily in the appropriation of our own interiority, we come to a new understanding of law. Responsible acceptance of the legal norm by the subject is far more necessary than expositors of traditional legal philosophy have admitted.

To avoid any misunderstanding: we are not fighting, here, against the pragmatic presumption, rebuttable or not, that "every-body knows the law". Courts of law could still operate on that basis; in fact, they need to do so in many circumstances. We say something deeper and less pragmatic. We say that a human person is not fully alive in the community unless he appropriates the value upheld by the law, and wants to reach for it out of his own personal decision taken responsibly. Nor is a community fully

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alive unless it has such members. This imposes all sorts of duties on the legislator. He must make norms for persons who want to be alive and responsible. That makes a difference for the creation of laws. Substantial consultation is indispensable. The act of pro-mulgation may be enough for the purposes of legal presumption, but intelligent communication between the legislator and the members of the group requires much more than that. An adult person must be led to see the intrinsic rationality and goodness of the law.

A new philosophical approach, then, points to the need for improving the process of lawmaking in the community on the basis of a fresh answer to the old question: what is law?

5) Our jurisprudence acquires new vitality. There is newness vis-a-vis the traditional jurisprudence in admitting that meanings, and legal meanings at that, are living beings generated by the lawmaker and regenerated by judges and interpreters. Because they are living beings, they are subject to the rhythm of life and death, or, what is more important for our purposes, to the laws of evolution. Our traditional jurisprudence claimed and continues to claim, even if with a subdued voice, that every legal meaning has a standard shape and size which is hidden in the text. Judges and jurisprudentes have to find it. Once it is found, they are not expected to deviate from it. Behind such a conception there is, of course, the theory of universal concepts. If we break away from it, as Lonergan did, meanings will appear as slightly different from one person to another, from one culture to another, from one age to another. Also, they will appear as changing and developing. Therefore, not only can an evolving jurisprudence be justified -nothing else can be justified. That is something new in canon law.

Because we can bear the objection, "You are proposing rel-ativism", let us say clearly, "No, we are not"; neither is Lonergan. All insights and judgments must be rooted in objective data or they are dreams. This should be enough to rebut the objection. There are plenty of studies elsewhere to give extended explanations.

6) The relationship between philosophy and law is better defined. As the scope of philosophy (cognitional theory, epistemol-ogy, metaphysics) and the scope of law are clarified, we can see

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those two worlds distinct and united. Consequently, we can speak with greater certainty and precision of the relationship between philosophy and law. We could rather avoid the expression "philos-ophy of law" and speak of "philosophy and law". Philosophy answers questions about the human process of knowing and decid-ing, and about the ultimate structure of all that we can know and reach for. Law answers questions about norms of action proposed by the community through its legitimate agencies, for all members to follow. Such clarification vindicates the autonomy of both sciences, philosophical and legal, more than we believe has been done in the past. We submit that there is newness there.

7) There is a firm point of departure for investigating the relationship between theology and canon law. A balanced point of departure is set up for an eventual prolonged investigation of the relationship between theology and canon law. Each science retains its proper scope. Theology keeps contemplating the mysteries. Canon law creates norms of action for the community and interprets them. To make the move wisely from vision to action, we need to know a great deal about the relationship between a mystery and the action that the presence of that mystery among us postulates.

Such an approach excludes the reduction of mysteries to le-galities, or the destruction of necessary norms in the bliss of contemplation. Such a clear distinction is, we think, a healthy beginning; or, if not, it is at least a challenge to those who write on the "theology of canon law", asking them to define their point of departure more critically.

8) Functional specialties are affirmed. The functional spe-cialization that Lonergan proposes, to the extent that some scholars focus mainly on textual research, some on interpretation, some on narrative historical exposition, has been happening to a significant extent in the field of the science of canon law. There is nothing new in that. But, there is something new in a rational explanation for such a method. It can be promoted further with greater assurance.

9) An interdisciplinary approach is favored. Finally, there is a new emphasis on interdisciplinary approach. It has been asked for for a long time, but we all know how much more of it is

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needed to give to the law of the Church its proper role and dignity, and to bring it the respect it deserves. We have spoken of the law's relationship to philosophy and theology only. But there are the empirical sciences, such as anthropology, sociology, and psychol-ogy. They, too, should play a role m shaping our legal system.

* * * Time has come to close this essay. We have raised some

questions. We have proposed some answers. Our answers may prove right or wrong, but we wish that the science of canon law should never be bereft of disputed questions -- not only about particular issues, but, much more, concerning the very foundations of law in the Church. That is the tradition that has come down to us from the Camaldolese monk, Gratian, and the preacher-friar, Thomas Aquinas.

Ladislas ORSY, S.J. Professor, The Catholic University of America, Washington, D.C. 20064

NOTES ON BOOKS

The purpose of these notes is to provide the reader with enough infor-mation for the next step in studying the main issues of this article. Beyond that he should be able to find his own way.

1. Lonergan studies

An abundance of information is available at the Regis College Lonergan Center in Toronto (15 St. Mary Street, Toronto, Ontario M4Y 2R5). It is something between a reference library and archives, primarily for those who go to work there, although some borrowing is possible.

A conditio sine qua non for studying Lonergan is a good knowledge of the history of philosophy in general, and of epistemology in particular. His answers come in a historical context that stretches back to Plato and Aristotle, including Aquinas, Hume and Kant.

LONERGAN'S COGNITIONAL THEORY 239

Although Lonergan is a representative of the school of transcendental Thomi:;m, and the knowledge of his peers (Man!chal, de Broglie, Rahner, Lotz, Coreth, etc.) is helpful, his doctrine can be understood without having studied the others first.

The two main philosophical works of Lonergan, in English, are:

LONERGAN, Bernard J. F., Insight: A Study of Human Understanding, New York: Longmans, 1967. Method in Theology, New York: Herder and Herder, 1972. Many of his shorter writings are to be found in:

CRowE, F. E., ed., Collection: Papers by Bernard Lonergan, S.J., New York: Herder and Herder, 1967. RYAN, William F. J. and TYRRELL, J., eds., A Second Collection, Philadelphia: Westminster, 1974. Commentaries and dissertations keep multiplying. The best overall in-

troduction into the development of his thought is still:

TRACY, David, The Achievement of Bernard Lonergan, New York: Herder and Herder, 1970. The history of neo-Thomism in the Catholic Church is traced from

Leo XIII's Aeterni patris to recent philosophers by:

McCooL, Gerald A., Catholic Theology in the Nineteenth Century, New York: Seabury, 1977.

2. Method

"Method" is, in Lonergan's terminology, the pattern of operation of the human mind. That pattern is transcendental: present in all sciences.

A good way of checking this claim is to observe how scholars and scientists operate in different fields. Hence, we suggest some familiarization with the achievements of such scientists as Isaac Newton and Albert Einstein, and also with the theories of such economists as Adam Smith and Karl Marx. In their successes and failures in the concrete world, the validity of the transcendental method can be tested.

3. Philosophy and law

Philosophy of Jaw is a highly regarded and intensely cultivated subject in European universities. Most law schools in the United States do not give it a significant place in their programs. There is not much serious writing about it either. Hence, an inevitable drift toward legal positivism follows which can eventually, through the courts, do untold harm to the fabric of the nation.

We list some representative books on philosophy and law:

BETil, Emilio, Teoria generale della interpretazione, 2 vols., Milano: Giuffre, 1955.