The first of a two post series on canon law and some current issues in the Church
The great playwright, William Shakespeare, once had one of his characters in Henry VI say: “the first thing we do, let us kill all the lawyers.” The sentiment is one that one suspects would find a sympathetic audience today. Attacking lawyers is certainly fashionable today, both within the Catholic Church and without it, though it is the former that concerns us here. The great canonist Ed Peter’s has recently complained about the spirit of anti-nomianism that seems pervasive today as people reject the law, some in the name of mercy or the gospel, and some simply in the name of their own desires. Defend the law and one risks being labeled a Pharisee, a legalist, one who cares more for law than people.
But we cannot so easily do without canon law. Canon law, that is, the law of the Church, grew to maturity in the twelfth and thirteenth centuries, the same time that saw the founding of the universities and major reform movements in the medieval Church to free it from secular control. This was not mere coincidence. One strength of the law was its ability to draw distinctions, the same skill developed by the scholastic theologians. For instance, throughout Aquinas, when he takes on a problem, he often points out the much lies in how one makes fine distinctions. When discussing whether it was necessary that Christ become man, Aquinas explains that in an absolute sense it was not necessary, but in another sense, it was (because it was the most fitting and efficient way to work salvation). He distinguished sense, he drew lines.
Lawyer did the same things. The also drew lines. Those lines included the line between the sacred and the secular, as the drew a line around the Church as firm as the walls of Constantinople and said that no secular ruler might cross it. Drawing lines between the secular and sacred meant that, free of secular influence (in theory if not always in practice), the Church was free to reform and to grow in holiness.
The law had another advantage. It is said today that “the law is reason free from passion.” Certainly, this saying fits with the attitude of the medieval Church lawyers. Men are too easily given to passion, they find it too easy to put reason aside out of anger, greed, or even compassion. Thomas Aquinas, following Aristotle, once said that “most men live by sense rather than reason.” It was not said as an insult, but a realistic account of human nature. But the men of the Middle Ages knew that passion was no safeguard. Their’s was, in a sense, the first real Age of Reason, for they believed in the power of reason to understand the world in a way few had before. Reason, the rules of logic, would take them to a just and true outcome regardless the personal feelings or preferences or those involved. By reason, man escaped prejudice, and moved away from the animals and toward the angels. Hence, one task of law, reason free from passion, was the justice and fairness that came from truth. This was the purpose of law, to discover justice, regardless the feelings of those involved.
This was important when, in the early thirteenth-century, King Phillip Augustus of France, the most powerful ruler in Europe asked (demanded) that the Pope, Innocent III, grant him a divorce of his wife. Pope Innocent III, however, was not a mere sentimentalist, rather, he was a canon lawyer. Hence, was able to look past the personal preference of himself (he would have preferred not to anger the king) and the king, and tell the king that the law found no justification to put aside the plain words of Christ in the gospel: when a man divorces his wife and marries another, he commits adultery. By the law, the Pope tried defend the innocent wife of a powerful king who had begun to find her inconvenient.
This is why it is so unfortunate today when some in the Church set the law against the gospel and try to claim that we must put aside the law in the name of the gospel. Nonsense, if the law, reason free from passion, is not allowed not draw out the implications of the gospel and to consider its application to particular situations, then the decision will be unjust. If reason cannot decide, then unreason will. And when two passions collide, the passion of the stronger person usually prevails. Hence Henry VIII, who also demanded a divorce, rejected the advice of his lawyer, Thomas More, who told him that he had no grounds to break up his marriage. Henry ignored him; since his reason would not rule, his passion did and the first thing Henry did, was to kill the lawyer.
One final thought. In Robert Bolt’s Man for All Seasons, Thomas More’s son-in-law told him that he would cut down every law in England to achieve a desired end. More’s reply was biting: “And when the last law was down, and the devil turned round on you– where would you hide Roper, the laws all being flat… if you cut them down– and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then…?” Kill the lawyers, put aside the law, but who, as Bolt’s More says, could stand upright in ensuing storm.