About this Book

Law, Person, and Community: Theological, Philosophical and Comparative Perspectives on Canon Law explores the understanding of the human person that underpins canon law. From theological, philosophical, and comparative perspectives, the book poses the question: "What is law?" The book presents canon law as a classical legal system in which the positive law is derived from natural and divine law. The classical approach to law rests upon an understanding of human nature in which reason is able to know first principles and universal goods. The book indicates that the classical understanding contrasts with the modern positivistic theory of law in which the parameters of human reason are limited by the need for empirical verification. In the classical approach, law also reflects the supernatural destiny of the human person. This supernatural end leads to the priority of the contemplative over the political in the design of positive law. In comparison, liberal theory favors a political conception of justice and the human person. Although the classical approach to law recognizes universal norms, it remains open to the historically contingent. As illustrative of its historical development, canon law affirms the right of religious freedom on the basis of the traditional Western doctrines of the dignity of the human person and the separation of church and state. Religious freedom is understood not only as the freedom of individual belief but freedom for the religious community to prosper through the practice of its faith in the pluralistic society. The book suggests that the classical approach to law with its ground in natural and supernatural truth affords a more firm foundation for the development of human rights than does the modern positivistic theory of law. The book further describes the classical role of law in setting the optimal conditions for human flourishing through membership, participation, and solidarity in community. Canon law fulfills this function for the religious community of the Catholic Church. The book juxtaposes canon law's view of religious freedom with that of the modern secular state in which religious freedom has been reduced to a matter of private belief. Employing the example of United States constitutional law, the book describes how the modern secular state has curtailed the function of law in fostering the freedom of the religious community in the public order. The book observes that the modern view is at odds with religious traditions such as Judaism, Catholicism, and Islam in which the practice of faith depends on the proper relation between law, person, and community. The book thus proffers that canon law serve as a dialog partner in the broader discussion about what is law.