Foundations of a Sociology of Canon Law

Front matter

Judith Hahn

Foundations of a Sociology of Canon Law

Foundations of a Sociology of Canon Law

Contents

E E A L 41,

1.1 Canon Law Studies as Theology. serri Hau aa 2 1.2 .sJUsing Methods of Legal Studies. a nasser ur sn hr 4

1.3.5 Pure or Applied Sociology of Law... .ceeeeeeeeees 11

Chapter 1 A Introduction IAM

Abstract The study is the first book to present a sociology of Roman Catholic canon law from the perspective of canon law studies. By modelling a theoretical sociology to study canon law with the aim of better understanding the function and reality of the law in the Roman Catholic Church, it follows the methodology of a descriptive sociology as applied frequently in the sociology of law. The study receives the manifold approaches to a sociology of the law and discusses their merit in contributing to a sociology of canon law. In drawing on empirical findings from the sociology of law and the sociology of religion, the study substantiates its theoretical arguments by drawing on knowledge about both the reality of the church and the reality of law.

Keywords (Roman Catholic) canon law - Canon law studies - Roman Catholic Church - Sociological theory - Sociology of law - Sociology of canon law - Sociology of religion - Theology

This book is a sociology of canon law. It seeks to comprehend the reality of canon law. It is a book about ecclesiastical law as it is—and not about how canon law might be or should be. It focuses on the canon law of the present day, and not on its glorious past. By taking this approach, my study is also an experiment. It is a product of canon law studies. However, unlike most contributions by scholars of canon law, my study does not comment on canon law with the purpose of showing its merits and demerits in regulating ecclesiastical issues. Instead, it attempts to study the legal reality of the church. Of course, as a canonist I am not trained to analyse this reality from the outside as a sociologist would. Instead, by arguing from the viewpoint of canon law studies, my study represents an approach which is devoted to examining the law of the church from “within,” that is from the point of view of theology as an academic discipline which seeks to understand the connection between God, faith, and the law.

I view canon law studies as being part of theology. As a theo-legal discipline, it is unique insofar as it examines the law of the church from the perspective of theology and from the perspective of legal studies. In my opinion, its essential interdisciplinary shape also requires canon law studies to become proficient in using the tools of

© The Author(s) 2022 1 J. Hahn, Foundations of a Sociology of Canon Law, https://doi.org/10.1007/978-3-031-01791-9_1 the sociology of law. To understand canon law as it is we must learn to analyse its reality with the help of sociological theory and methodology. This helps us to understand canon law somewhat better; but it also helps us to understand more of theology. As canon law studies is theology, a canonist’s sociology of canon law is also a contribution to the debate on the status of sociology in theology and on the value of sociological findings for theology. The following introduction seeks to provide a little more clarity to this interdisciplinary field by locating the sociology of canon law at the intersection of the disciplines of canon law studies, theology, and sociology.

1.1 Canon Law Studies as Theology

In the academic culture in which I spent my formative years, canon law studies was and remains a subdiscipline of theology. It is the discipline which studies the law of the church as a law rooted in church and which is designed to serve ecclesiastical purposes. Theology understands the concrete earthly church as an embodiment of the heavenly church. Canon law studies is therefore tasked with clarifying how the organisation and legal structure of the earthly church as fact connects with the heavenly church as norm. Hence, similarly to ecclesiology, canon law studies engages in scholarly study about the church. However, it focuses in particular on the earthly church as fact which takes on a concrete form with the help ofnorms, and, in particular, legal norms. In consequence, one may understand canon law studies to be a continuation of ecclesiology. Canonist Robert Ombres put this finding as follows, “Canon law may be usefully understood as applied ecclesiology.”' This statement acknowledges the connection between law and ecclesiology; and it also highlights the reason why canon law studies is essentially perceived as practical theology. Hence, in contrast to other suggestions made by practical theologians about why canon law is a practical discipline, I propose understanding canon law studies as a discipline of practical theology not so much because it studies the law as a field of ecclesial practice, but because it studies the legal structure of the church as the practical embodiment of the heavenly church. Canon law studies, I would like to suggest, is practical theology because it analyses how the church as norm becomes fact, and does so with the help of those facts which we call “norms.” I will return to this thought in Sect. 2.1.11.

The classification of canon law studies as theology has become manifest in two tasks assigned to canon law studies after the Second Vatican Council, as canonist Sabine Demel points out. Demel states that it is the task of canon law studies to consistently analyse two problems. First, canon law studies constantly has to ask whether there are new theological findings which prove to be legally relevant—and must consequently be adopted into canon law. Second, canon law studies has to

1.1 Canon Law Studies as Theology 3 constantly review existing law to establish whether it adequately expresses the current findings of theology.” If it is the task of canon law studies to understand the legal order of an organisation which provides its members with law to structure the social but which is also relevant for salvation, then canon law studies cannot rely solely upon the arguments of legal philosophy, history, and sociology to understand the law as a social phenomenon. For canon law, reference to its own traditions and to analogous norms in the secular legal system is most certainly enlightening. Nevertheless, the roots and reasons of canon law must also be grounded in theology. Postconciliar canonical thought is therefore in a constant search for a theologically grounded foundation of canon law. This requires canon law studies to have a solid grounding in theology. However, its essential interdisciplinary structure also requires canon law studies to be familiar with legal studies as a source of knowledge about the law and about legal methodology. This dual perspective of theology and legal studies has led to heated methodological debates among scholars of canon law still seeking agreement on where to locate the discipline and how to outline its theory and methodology. Different points of view collide. It is a matter of lively debate whether canon law studies is a legal discipline with legal methods,” a theological discipline with legal methods,’ a theological discipline with theological methods,” or a theological-legal discipline with both theological and legal methods.° None of these approaches appears to be fully convincing inasmuch as they either undermine the character of canon law studies as theology or as a legal discipline, or muddy the waters with respect to methodology. With a view to these problems one approach stands out, as I find. Its most prominent proponent was canonist Winfried Aymans. Aymans focused his attention on the genuinely theological character of canon law studies without losing sight of the fact that theology is not methodologically monistic, but is reliant on the methodological resources of other disciplines. Aymans consequently defined canon law studies as a discipline of theology, albeit one which relies upon legal methods, yet doing so in the interest of and within the boundaries set by theology.’ I agree with Aymans in this respect but want to open up his approach a little more, as I will suggest shortly.

°E.g. May and Egler (1986, pp. 17-22); Sanders (2000, p. 394). For overviews of the complex methodological debate in canon law studies see e.g. Cattaneo (1993, pp. 52-64); May (1999, p. 92 fn 2); Graulich (2006, pp. 248-249); Neudecker (2013, pp. 467-468).

7See Aymans and Mörsdorf (1991, p. 71); Aymans (1995, p. 370).

4 1 Introduction 1.2 ...Using Methods of Legal Studies

In line with Aymans’s definition of canon law studies as theology which uses legal methods in the pursuit of canonical knowledge, canon law studies avails itself of legal methodology to study the legal shape of the church. This choice of methodology is not the only way to proceed, but it is necessary if canon law studies seeks to claim with any justification that it can shed light on canon law as law. In order to understand what canon law is, canon law studies must have legal methods at its disposal as part of its methodological repertoire. But what is the methodology of the law? We cannot really refer to legal methodology as though it were a single concept. This is because questions of legal history, foundation, philosophy, dogma, language, and sociology all require a methodology of their own. Studying the law therefore requires a plurality of methods. This is evident in canon law studies inasmuch as it employs text-hermeneutic and linguistic methods of interpretation for its legal exegesis; employs philosophical and analytical approaches to studying the foundations of canon law, its underlying principles, and the relation between law and justice in its study of legal dogma, theory, and philosophy; employs historical approaches to studying legal history; and employs social theory and social research in its sociology of law to study the social reality of the church and its law. My study is about precisely the latter sociological dimension of canon law studies.

As a sociology of canon law by a canonist, my book is a canon law study and as such a theological endeavour, yet an endeavour using methods taken from the sociology of law to gain theological insights. This finding underscores the essential interdisciplinarity of the sociology of canon law as a field of research. Admittedly, this interdisciplinarity might not appear particularly exotic from the perspective of the sociology of law, as this discipline always stands at the intersection between several disciplines: it has links to general sociology, empirical social research, and legal theory. In the following I will therefore outline what these links mean for the sociology of canon law.

1.3.1 The Sociological View of the Law

The first point that I feel compelled to make is that the relationship between the sociology of law and general sociology is a rather fraught one. And it is likewise not easy to draw a clear line between the two. General sociologists tend to look at the

SOn the “non-legal” aspects of canon law studies see also May and Egler (1986, p. 25).

role of the law in their study of groups, such as societies or communities, and to examine the law as a social phenomenon. In contrast to general sociology, the sociology of law has a narrower focus, as it focuses specifically on the law. In this light, legal scholar David Schiff describes the sociology of law as the “sociological study of specific legal phenomenon [sic], e.g. specific legal situations or the social relations associated with certain legal rules”.” In trying to identify the social significance of the law, sociologists of law tend to focus their attention on the legal system, its professionals (“lawyers, judges, the jury, the officials of a legal system”), and the places of the law (“the court room, the solicitor’s office, the jury room”'°). There are several approaches to exploring the interplay between the law and society from the perspective of the sociology of law. Socio-legal scholar Manfred Rehbinder categorises them as follows: One may either reference legal norms and examine the degree to which they influence group behaviour, or study group behaviour to ask what norms it is based on, or refer to the legal authorities’ behaviour and study the institutions responsible for upholding the law in order to identify situations in which the legal authorities react to certain types of social behaviour and sanction breaches of law.'! Rehbinder finds all of these perspectives important for gaining a sociological understanding of what the law is and how the law functions. However, those often highly focused studies by the sociology of law tend to overlook the interplay between society and the law, as Rehbinder also notes. This interplay is more an issue for general sociology, even though general sociologists tend not to be primarily interested in law. Nevertheless, David Schiff’s list of the foremost general sociologists in whose work the law played a significant role includes inter alia Emile Durkheim, Eugen Ehrlich, Max Weber, and Karl Marx." Other names also spring to mind; this certainly not exhaustive list might also include Michel Foucault, Pierre Bourdieu, Niklas Luhmann, and Jiirgen Habermas. Schiff believes that if one’s intention is truly to comprehend the law, it is necessary to take both perspectives into account, namely the specialist interests of sociologists of law with their focus on legal phenomena, and the study of the law as a normative phenomenon with an enormous impact on society, as undertaken by general sociologists. Scholarly enquiry into the law has always rested, as Schiff states, on a dual approach: first, on the question of what constitutes the social (“what is society?”), and, second, on the question of what brings about the legal reality which confronts us as members of social groups (“what is law?”).'?

6 1 Introduction 1.3.2 Empirical Approaches to the Law

However, delving into the field of the sociology of law, one encounters some disagreement about what constitutes the right approach to this endeavour. One major difference of opinion revolves around the status of empirical approaches in the sociology of law. Its theories and methodologies necessarily have to reflect that the sociology of law deals with the reality of law. This explains its interest in empirical social research. '* Many of its representatives therefore understand the sociology of law as an empirical field of scholarly enquiry which draws on methods used in empirical sociology in order to study the social reality of the law. However, empirical approaches do not necessarily involve experimental methods. Legal scholar Martin Shapiro made this point when he described the difficulty of conducting simulated and experimental research on the law under laboratory conditions as the “impossibility of putting laws and nations in test tubes and bubble chambers.”'° In addition, field research methods have also frequently proven inadequate, despite the finding that some sociologists of law such as Riidiger Lautmann have been successful in demonstrating that participant observation can yield quality results at the highest level. Lautmann’s famous study, entitled Justiz—die stille Gewalt [Judiciary—The Silent Force], '® in which he documented his observations on the decision-making methods of judges, has become a classic piece of empirical research on adjudication. The study is rare and special as Lautmann, a scholar with both legal and sociological training, was able to conduct his research from his own position as a judge, and was therefore practically invisible as a sociologist for his fellow judges. Lautmann admits that his study would be virtually impossible to replicate under current conditions. Whilst it was possible in the early 1970s for a sociologist and qualified lawyer to work as a judge for a while in order to pursue his research, sociologically trained lawyers today would find it very difficult to occupy the position of a judge for a short period of time, at least in the German judicial system, due to the current terms of recruiting tribunal staff. Sociologist Thorsten Berndt, for instance, who in his 2010 study documented the self-perceptions and self-images prevalent among German judges, could not rely on the method of participant observation to do so, but had to rely on interviews as his method of choice. It is therefore clear that the circumstances of the time play at least some part in determining what is methodologically feasible. These challenges place a burden of responsibility on the sociology of law to identify the most appropriate empirical methods for engaging in empirical research on the reality of the law. Sometimes an

Es. Blankenburg (1975). Blankenburg’s volume is a compilation of socio-legal contributions which were written based on the methods of observation, interview, and documentary analysis. On the empirical methods used in the sociology of law see also Carbonnier (1974, pp. 176-195, for documentary analysis, and pp. 196-230, for empirical data collection); Röhl (1987, pp. 105-118); Rehbinder (2014, pp. 48-64); Baer (2021, pp. 279-290).

'S Shapiro (1981, p. VID.

1©First edition 1972; second edition 2011.

experimental approach is possible and expedient; sometimes textual analysis and comparative study make more sense. Martin Shapiro shares this view. In his study Courts he used comparative law research to examine the idiosyncrasies of various judicial systems. Shapiro, for his part, described his approach as “a substitute for the experimental method”'’. Whilst admitting the limited effectiveness of this substitute, Shapiro regarded it as without alternative as an experimental approach was not an option for his research.

1.3.3 Law as Doctrine, Law as Practice

The importance of empirical studies might be evident for the sociology of law; yet it is not uncontroversial. Sociological approaches which understand the law primarily as a social practice are clearly drawn to empirical methods. Yet approaches which examine the law primarily as a doctrine have trouble warming to them; sociologist of law Jean Carbonnier subsumes these theories from the sociology of law under the heading of “philosophies of the sociology of law”.'® Similar feelings of reticence towards empirical studies are, however, not exclusive to philosophical approaches in the sociology of law, but also exist in legal studies in general. A brief look into legal practice reveals this reticence as well, as most legal practitioners hold sociological knowledge in rather low esteem. Socio-legal scholar Roger Cotterrell, commenting on the results of empirical studies, states that everyday legal life constantly relies on non-legal expert opinions, for instance in the form of medical, psychological, or technical reports; however, lawyers seldom refer to sociological findings and, if they do, they tend to do so with scepticism. Cotterrell suspects the reasons behind this in the fact that the social sciences—in contrast to the other non-legal disciplines which legal studies draw on—cast doubt on legal expertise because they offer a competing narrative about social reality, as Cotterrell suggests, “Social scientific and legal knowledge compete in the interpretation of social relationships”.'” Whilst lawyers understand themselves as intermediaries between legal doctrine and social practice, social scientists tend to be more sceptical about the relevance of doctrine as a force for shaping social practice. Cotterrell therefore sees the roots of this conflict between the law and sociology in the tensions between approaches which take a doctrinal view of law, and those which view law primarily as a social practice. However, these antipathies among legal practitioners have not led to their complete loss of interest in the social sciences, according to sociologist Doris Mathilde Lucke. Lucke believes that legal practice operates in two moves. Whilst the law uses its expertise to make itself immune to infiltration by other fields of scholarship, at the same time it also embraces the selective expertise it needs from other fields by drawing that expertise into the legal domain. Hence the law digests external expertise, but in the mode of

appropriating it. Lucke explains, “In a sophisticated combination of operating a closed shop policy in relation to its own knowledge, and keeping an open source policy towards outside knowledge, it has become possible for the law to appropriate the knowledge of other disciplines in something akin to annexation and, stripped of its disciplinary identity beyond recognition, to pass it off as its own.””® Hence, the law overcomes its coyness towards the social sciences, according to Lucke, by assimilating sociological knowledge. However, lawyers tend to take this knowledge seriously only if it appears to be genuinely legal. Sociological knowledge must therefore conceal its sociological roots to find acceptance within the realm of the law. Lucke observes, “The more it conceals its sociological identity, the more sociology increases its potential to bring about change. . . . In the end, the lawyers can then not only say they already knew everything themselves, but that they have also—and always—known it better.”

1.3.4 Dogmatic and Empirical Approaches

The sociology of law is closely aligned with legal studies, and particularly with its subdiscipline of legal theory.** The educational backgrounds of socio-legal scholars often reflect this proximity, as many of these scholars happen to have sociological and legal training. Hence, sociologists of law are often also legal scholars.” Nevertheless, the relationship between sociology and legal studies is anything but harmonious. Niklas Luhmann speaks of an ambivalence in the relationship between the disciplines.” In a similar vein, legal realist Karl Llewellyn notes that it is hard to reconcile the two, stating, “The two realms of thought and discourse mix no more

2° Original quote, “In einer raffinierten Verbindung aus einer—auf das eigene Wissen bezogenen— closed shop-Politik—und einer—auf fremdes Wissen bezogenen—open source-Politik wurde es . möglich, sich das Fachwissen anderer Disziplinen annexionsartig anzueignen und es, seiner fachlichen Identität bis zur Unkenntlichkeit entkleidet, als das ureigene auszugeben”, Lucke (2010, p- 83). ?l Original quote, “...entfaltet soziologisches Wissen sein praxisveränderndes Potenzial umso wirkungsvoller, je mehr es seine fachliche Identität verliert. ... Am Ende haben die Juristen dann nicht nur alles selbst, sondern vor allem alles—und zwar immer schon—besser gewusst”, Lucke (2010, p. 83).

For an approach which conceives of legal philosophy, legal theory, and the sociology of law as being intrinsically interlinked, see Kunz and Mona (2006). ?3Tn the revised 2011 edition of his 1972 book Justiz—die stille Gewalt [Judiciary—The Silent Force] Rüdiger Lautmann describes his own formation as a legal scholar and sociologist and his biographical development as shifting between jurisprudence and sociology. Most fascinatingly, Lautmann asks what influence these two perspectives exerted on his own study. He also recollects the irritations which his dual qualification in law and sociology caused, particularly among other lawyers, see Lautmann (2011, pp. 10-12, 22).

comfortably than oil and water”.”° We may detect this conflict also by studying the academic backgrounds and self-conceptions of socio-legal scholars within their disciplines. Manfred Rehbinder noted this by stating that it is possible to place sociologists of law into two categories, those who understand themselves more as legal scholars, and those who understand themselves more as sociologists.” In a similar vein, Jiirgen Habermas identified a dualism between normative and objectivist approaches to the law, which he found highly problematic, noting,

Tossed to and fro between facticity and validity, political theory and legal theory today are disintegrating into camps that hardly have anything more to say to one another. The tension between normative approaches, which are constantly in danger of losing contact with social reality, and objectivistic approaches, which screen out all normative aspects, can be taken as a caveat against fixating on one disciplinary point of view.”

Within legal studies there is some similar disharmony in the field of legal theory, namely between those legal theories which are anchored in legal dogma on the one hand, and legal theories rooted in empirical observations and sociological findings on the other. Doctrinal or dogmatic normative theories of law conceive of the law as a system derived from legal doctrine, as the conceptual result of the rules, principles, and values underlying the law, as Roger Cotterrell explains, stating, “By normative legal theory I mean theory which seeks to explain the character of law solely in terms of the conceptual structure of legal doctrine and the relationships between rules, principles, concepts and values held to be presupposed or incorporated explicitly or implicitly within it’.** According to normative legal theories, the law arises out of doctrine and only acquires its significance as law in doing so. However, David Schiff rightly points out that the underlying doctrinal basis of legal theorists who argue along these lines is by no means homogenous. It is actually dependent on philosophical decisions such as whether to align oneself with a natural law, positivist, or realist school of thought. Schiff explains the consequences of these differences with regard to normative theories of law by stating,

Natural law philosophy searches for an a priori legitimacy for legal phenomena and involves studies into the ideas of justice, nature, etc. Positivist legal philosophy involves the study of the identification of legal phenomena, their normative structure and validity in human, if not empirical terms. Realist schools of legal philosophy are concerned with the interpretation of laws in terms of social or psychological facts, replacing the normative by the causal.”

However, irrespective of the philosophical approach chosen to establish a doctrine of the law, there is one demerit that all of these approaches share, as Cotterrell maintains. The problem is that all dogmatic approaches towards the law only really hold water if one’s viewpoint does not venture beyond the legal system itself, and only really make sense to legal professionals who are participants in the doctrinal

26 See Rehbinder (1963, p. 470); see also Carbonnier (1974, pp. 18-20). ? Habermas (1996, p. 6); see also Carbonnier (1974, p. 274).

debates about the law. In contrast, empirical theories of law have attempted to study law, including legal doctrine, in its historical context and with regard to its social meaning. Cotterrell explains this approach by noting, “By empirical legal theory I mean theory which seeks to explain the character of law in terms of historical and social conditions and treats the doctrinal and institutional characteristics of law emphasized in normative legal theory as explicable in terms of their social origins and effects”.*° Cotterrell believes that empirical legal theories also permit outside observers to understand aspects of the law without necessarily having participated in the doctrinal debates about the law. The consequence, however, is that empirical legal theories tend to exist at one remove from legal professionals and their practice, even though it is precisely this practice which provides empirical theories of law with a basis for drawing conclusions about the reality of the law.

In arranging legal theories as he does, Cotterrell clearly adopts Luhmann’s observation that legal scholars and legal professionals view law from the inside, whilst sociologists tend to view it from the outside.*' Whilst legal scholars view law primarily as doctrine, sociologists consider it a social practice. At the same time, however, Cotterrell also points out that Luhmann’s interdisciplinary observation has intradisciplinary parallels, insofar as it is not only the disciplines of legal studies and sociology that are in dispute about the primacy of doctrine or empirical facts; these fault lines also extend across legal studies and the sociology of law themselves, dividing legal theories or sociologies of law according to whether they prefer a doctrinal or empirical starting point for approaching the law. These conflicts have a history. The problematic relationship between doctrinal approaches and those empirical or sociological approaches more focused on reality were to no small degree influenced by the socio-legal scholars of the past. Eugen Ehrlich, for example, as one of the founders of the sociology of law, provoked doctrinal thinkers in the foreword to his Fundamental Principles of the Sociology of Law by claiming that the legally immanent workings of the law, namely legislation, adjudication, and administration are actually fairly immaterial for the development of law.” Of far greater influence is society, as Ehrlich claimed. Consequently, the sociology of law, in studying the reality of law, is actually the true scholarly field of legal study, according to Ehrlich.** Ehrlich’s thesis unleashed a controversy which culminated in a serious confrontation between himself and legal positivist Hans Kelsen in 1915, which became known as the “Kelsen-Ehrlich debate.””* “Debate,” it must be said, is a rather friendly term to describe the fury with which Kelsen responded to Ehrlich’s thesis, whereas Ehrlich felt misunderstood and hurt by his fellow disputant’s harsh attacks. Their controversy might serve as an emblematic example of the deep rifts

3! See Luhmann (1986, pp. 19-20; 2004, p. 59); on this subject also Sandberg (2016, pp. 66-77). 32 See Ehrlich (1936, p. XV).

34See Kelsen and Ehrlich (2003).

between doctrinal and sociological legal theories. In modern-day legal studies here in Germany, this rivalry plays out primarily to the detriment of the sociological approaches, because legal studies frequently puts more emphasis on normative doctrinal approaches. As a consequence, the sociology of law suffers in the broader landscape of legal studies due to its precarious status in the canon of the various fields of legal study, with their primarily dogmatic footing. In Germany, its relegation to the periphery of legal scholarship is reflected in the training given to law students, in which sociological issues, at present, occupy only a subordinate position.” However, cultivating a dualism of doctrinal and sociological legal theories might prove to be detrimental to both approaches, as it might lead to blind spots in knowledge about the reality of the law. It is therefore most interesting to note that for Roger Cotterrell and other scholars seeking to comprehend the reality of the law, dogmatic and empirical approaches are equally valuable in the quest to obtain a viable understanding of law. Their mixed approaches contain the idea that those seeking to grasp the law in all its complexity must possess a knowledge of legal doctrine as well as of legal practice. Cotterrell believes that legal theories often suffer from the underrepresentation of one or the other of the two perspectives. He believes the solution to this problem lies in educating legal theorists to be at one and the same time trained experts in doctrine who view the law from the inside, and experts schooled in sociology who view the law from the outside. Cotterrell approaches this duality from a sociological perspective, proposing, “The legal sociologist must become a lawyer in order to challenge or go beyond lawyers’ conceptions of law.”°° In addition, giving legal experts a grounding in sociology might prove to be just as expedient. The above-mentioned phenomenon—that many modern-day socio-legal scholars have received a legal and a sociological education—is an opportunity to overcome the mutual suspicions that exist between those who advocate dogmatic approaches, and those who advocate sociological approaches to the law.