Foundations of a Sociology of Canon Law

This "Open Access" book investigates the legal reality of the church through a sociological lens and from the perspective of canon law studies, the discipline which researches the law and the legal structure of the Catholic Church. It introduces readers from various backgrounds to the sociology of canon law, which is both a legal and a theological field of study, and is the first step towards introducing a new subdiscipline of the sociology of canon law. As a theoretical approach to mapping out this field, it asks what theology and canon law may learn from sociology; it discusses the understanding of “law” in religious contexts; studies the preconditions of legal validity and effectiveness; and based on these findings it asks in what sense it is possible to speak of canon “law”. By studying a religious order as its struggles to find a balance between continuity and change, this book also contributes to the debates on religious law in modernity and the challenges it faces from secular states and plural societies. This book is of interest to researchers and students of the sociology of law, legal studies, law and religion, the sociology of religion, theology, and religious studies. This is an open access book. Translator ́s Note Acknowledgements Contents Chapter 1: Introduction 1.1 Canon Law Studies as Theology 1.2 Using Methods of Legal Studies 1.3 Using Methods of the Sociology of Law 1.3.1 The Sociological View of the Law 1.3.2 Empirical Approaches to the Law 1.3.3 Law as Doctrine, Law as Practice 1.3.4 Dogmatic and Empirical Approaches 1.3.5 Pure or Applied Sociology of Law 1.3.6 Interdisciplinary Fields of Research 1.3.7 Sociological Research on Canon Law 1.3.8 Theological and Canonical Considerations 1.3.9 Descriptive and Normative Interests 1.4 Approaching a Sociology of Canon Law 1.4.1 Theories in Monographic Form 1.4.2 Learning from Existing Research 1.4.3 Selecting Sociological Theories 1.4.4 Learning from Empirical Data Bibliography Chapter 2: Law Through the Lens of Sociology 2.1 Sociological Views of the Law 2.1.1 Legal Monism and Pluralism 2.1.2 Ubi communitas ibi ius 2.1.3 Spatial and Individual Pluralism 2.1.4 The Problem of Panjurism 2.1.5 Law as a Coercive Order 2.1.6 Criticism of Coercion Theories 2.1.7 Low-Level Coercion of Canon Law 2.1.8 Beyond Coercion Theories 2.1.9 Law as Behavioural Expectation 2.1.10 Expectation, Coercion, Sanction 2.1.11 Norms and Facts, Norms as Facts 2.1.12 Law in Books, Law in Action 2.1.13 Institutionally Bound Doctrine 2.1.14 State Law and Sub-state Laws 2.2 A Sociological Look at Canon Law 2.2.1 Sovereign Law of the Church 2.2.2 Canon Law as Sub-state Law 2.2.3 Decreasing Social Significance 2.2.4 State Law as a Frame of Reference 2.2.5 Simultaneous Non-synchronicity 2.2.6 Dissonant Experiences of Law Bibliography Chapter 3: Functions of the Law 3.1 Law and Social Order 3.1.1 Law Creating the Social 3.1.2 Creating Social Order 3.1.3 Law Creating the Church 3.1.4 Ecclesiological Endorsement 3.1.5 Concealed Canon Law 3.2 Law and Conflict Resolution 3.2.1 Subjective and Objective Conflicts 3.2.2 Simple and Complex Structures 3.2.3 Counselling and Mediation 3.2.4 Arbitration and Adjudication 3.2.5 A Triad or Two Against One? 3.2.6 The Problem of Impartiality 3.2.7 Employing Elements of Mediation 3.2.8 Penal Procedures as Social Control 3.2.9 Adjudication and Legal Politics 3.2.10 Appeals as Approval 3.2.11 Sanctions and Police Function 3.2.12 Coping with Complexity 3.2.13 Perplexing Selectivity of the Law 3.2.14 Ecclesiastical Adjudication Research 3.2.15 Class Justice, Clerical Justice Bibliography Chapter 4: Law and Legal Validity 4.1 Law Born of Power, Power Born of Law 4.2 Characteristics of Positive Law 4.2.1 Law as the Result of Decision 4.2.2 Legal and Moral Norms 4.2.3 The Changeability of Law 4.2.4 Change as a Learning Process 4.2.5 How to Procure Legal Change 4.2.6 Destabilisation Through Change Bibliography Chapter 5: Validity and Legitimacy 5.1 A Sociological View of Validity Reasons 5.1.1 Validity Derived from Power 5.1.2 Social Contract and Consensus 5.1.3 Improbable Consensus 5.1.4 Procedural Legitimation 5.1.5 Accepting Majority Decisions 5.1.6 Representative Participation 5.2 The Recognition of Canon Law 5.2.1 Juridification and Trivialisation 5.2.2 Constitutional Challenges 5.2.3 Revelation and Nature 5.2.4 Lacking a Consistent Rule of Law 5.2.5 Protection of Fundamental Rights 5.2.6 Abundant Ecclesiastical Power 5.2.7 Controlling Decision Making 5.2.8 Excluding the Laypeople Bibliography Chapter 6: The Effectiveness of the Law 6.1 Effectiveness as Compliance 6.1.1 Non-Compliance and Causality 6.1.2 Abiding by Legal Norms 6.1.3 Ratios of Effectiveness 6.1.4 Cultural Idiosyncrasies 6.1.5 Intercultural Challenges 6.2 Conditions of Compliance 6.2.1 Knowledge of the Law 6.2.2 Compliance and Sanctions 6.2.3 Limited Sanctions in Church 6.2.4 Cost-Benefit Considerations 6.2.5 The Law and Competing Norms 6.2.6 Socialisation and Internalisation 6.2.7 Canon Law and Non-Compliance 6.2.8 Structures of Normative Variance 6.2.9 Choice of Law and Forum Shopping 6.3 Effectiveness and Validity 6.3.1 Non-institutionalised Law 6.3.2 Validity Through Reception Bibliography Chapter 7: Conclusion 7.1 A Short Outlook 7.2 A Summary in Theses 7.2.1 A Sociology of Canon Law 7.2.2 Law Through the Lens of Sociology 7.2.3 Functions of the Law 7.2.4 Law and Legal Validity 7.2.5 Validity and Legitimacy 7.2.6 The Effectiveness of the Law 7.2.7 Effectiveness and Validity