This paper investigates force shift, a phenomenon in which the canonical discourse conventions, or force, associated with a clause type can be overridden to yield polar questions with the help of additional force-indicating devices. Previous studies attribute force shift to the presence of a complex question force component operating on semantic content. Based on utterance particles and particle clusters in Cantonese, we analyze force shift as resulting from compositional operations on force-bearing expressions. We propose that a simplex force, such as (...) assertion or question, denotes unanchored sentence acts, while a force-shifting particle like Cantonese _ho2_ is an anchoring function anchoring a sentence act to the speaker while querying whether or not the addressee can perform the sentence act. The proposed semantics makes predictions about _ho2_’s interactions with addressee-changing operations and imperatives, as well as about a larger family of force shift phenomena. (shrink)

This paper provides an overview of the application of canon law to the administration of Catholic heahh care in the United States. It is divided into four sections. The first section provides a context for the role of canon law in the life of the Church. The second section considers the fundamental question of juridic personality in the Church. The third section delineates the predominant forms of organization that have hitherto been the main Church related institutions providing health (...) care. The fourth section considers the validity of the McGrath "independence" thesis conceming the continuing applicability of canon law to incorporated health care structures under U.S. civil law. The paper concludes with some practical considerations conceming the relationship between canon law and corporate structures. (shrink)

In 1215 the Fourth Lateran Council banned priestly involvement in the unilateral judicial ordeal, thus effectively bringing to an end the centuries-old practice of appealing to the judicium Dei as a means of resolving legal disputes. This article explores the reasons behind this seminal development in Western legal history; its principal theme is that they are more complex than modern scholars have allowed. Detailed consideration is given to the canonico-theological criticisms specifically aimed at the ordeal by contemporary critics, as well (...) as to the sweeping reforms of ecclesiastical criminal procedure initiated by Pope Innocent III in the closing years of the 12th century. It will be argued that although these factors contributed to the demise of the ordeal, they do not account for the decision to abandon it. When placed in its proper legislative context, it will be seen that that decision was a product of a long-standing campaign by Church reformers to secure the spiritual mission of the clergy by establishing a clear division of labour between the ecclesiastical order and the secular world. Finally, it will be argued that the ordeal was abandoned because Church reformers regarded it as irrational and, consequently, that the claim that it only came to be seen as irrational because it was abandoned, should be rejected. (shrink)

The recent case of the Glasgow midwives, Mary Doogan and Concepta Wood, highlighted again the scope of the ‘conscience clause’ relating to the Abortion Act 1967, and to which tasks it could be appl...

In the Medieval period, Roman law and canon law formed ius commune or the common European law. The similarity between Roman and canon law was that they used the same methods and the difference was that they relied on different authoritative texts. In their works canonists and civilists combined the ancient Greek achievements in philosophy with the Roman achievements in the field of law. Canonists were the first who carried out research on the distinctions between various legal sources (...) and systematized them according to a hierarchical order. The Medieval civilists sought solutions in canon law for a large number of problems that Justinian’s Codification did not hinge on or did it only superficially. Solutions offered by canon law were accepted not only in the civil law of Continental Europe, but also in the English law. (shrink)

Waters, Ian The Australian hierarchy was established by Pope Gregory XVI in 1842. Since then, there have been six national Catholic councils held in Australia. The first two, celebrated in 1844 and 1869, are known as the First Provincial Council of Australia and the Second Provincial Council of Australia, as until 1874 the Australian dioceses were all in the one ecclesiastical province with Sydney being the sole metropolitan see. In 1874, a second province - Melbourne - was established, and the (...) national councils since then - four of them, celebrated in 1885, 1895, 1905 and 1937 - have been called plenary councils, the term used in the Catholic Church in recent centuries for councils whose participants are from more than one ecclesiastical province; in the past, terms such as regional councils or national councils have been used. As we all know, another plenary council for Australia is planned to commence in 2020. (shrink)

Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law takes up the fundamental question "What is law?" through a consideration of the interrelation of the concepts of law, person, and community. As with the concept of law described by secular legal theorists, canon law aims to set a societal order that harmonizes the interests of individuals and communities, secures peace, guarantees freedom, and establishes justice. At the same time, canon law rests upon a traditional (...) understanding of the spiritual end of the human person and religious nature of community.The comparison of one of the world's ancient systems of religious law with contemporary conceptions of law rooted in secular theory raises questions about the law's power to bind individuals and communities. Professor John J. Coughlin employs comparative methodology in an attempt to reveal the differing concepts of the human person reflected in both canon law and secular legal theory. Contrasting the contemporary positivistic view of law with the classical view reflected in canon law, Law, Person, and Community discusses the relationship between canon law, theology, and natural law. It also probes the interplay between the metaphysical and historical in the theory of law by an examination of canonical equity, papal authority, and the canon law of marriage. It juxtaposes the assumptions of canon law about church-state relations with those of the modern liberal state as exemplified by U.S. first amendment jurisprudence. No scholarly work has yet addressed this question of how the principles and substance of canon law, both past and present, relate to current issues in legal theory, such as the foundation of human rights and in particular the right of religious freedom for individuals and communities. (shrink)

Giovanni Pico della Mirandola is best known for his Oratio, one of many works containing his promise to prove that the philosophies of Plato and Aristotle are in agreement. Pico never fulfilled this promise, however, and commentators have at times derided Pico’s concordist project. The present paper argues that Pico’s notion of concordia was at least partly inspired by a jurisprudential habit derived from his early training in canon law. After examining Pico’s explicit but dispersed statements on concordia, I (...) then consider the circumstantial evidence for a jurisprudential origin to Pico’s project. As the habits and dispositions of Renaissance exegetes differed significantly from those of present-day interpreters of the history of philosophy, there is merit in looking beyond traditional disciplinary boundaries to understand Pico’s attempted concordia of Plato and Aristotle. An appreciation of this context mitigates the negative assessments of his enterprise. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Relationship between Theology and Canon Law: Another Context of Political Thought in the Early Fourteenth CenturyTakashi ShogimenPolitical thought and ecclesiology in the early fourteenth century have often been assessed as a series of responses to the question of the relationship between church and state. The conflict between Pope Boniface VIII and Philippe IV at the turn of the thirteenth and fourteenth centuries acutely demonstrated the conflict between (...) the spiritual and temporal powers. The conflict between Pope John XXII and the claimant to the imperial throne, Ludwig of Bavaria, also seems to have formed the historical background against which contemporary intellectuals expounded their political and ecclesiological thought. Two recent excellent textbooks on medieval political thought discussed the early fourteenth century from such a perspective and situated Marsilius of Padua and William of Ockham, along with their papalist adversaries, in this context. 1It is indeed a fair treatment of the period; however, it is not the only legitimate perspective. For instance, an alternative perspective can be developed through an examination of the Poverty Controversy between Pope John XXII and the Franciscans. This dogmatic dispute over the question of whether Christ and the apostles did not own anything individually or communally had a political dimension: it involved discussions on the nature of papal power over the church and resulted in the refinement of the idea of natural rights. 2 The dichotomy [End Page 417] between the papal and imperial camps can also mislead historical interpretation if the fact that each camp was not monolithic is overlooked. Just as Marsilius and Ockham embraced different political views in the alleged imperial camp, so the alleged papal ideologists did not always share the same views. It has even been argued that the doctrines propounded by “papalists” and “anti-papalists” were not irreconcilable but differed only in emphasis. 3 It is easy to see that the problem of Church and State is not the all-embracing concern of the period.What, then, are the possible benchmarks against which we can evaluate the political views of contemporary thinkers? This paper is intended to suggest that there is another context against which political thought and ecclesiology in the early fourteenth century may be assessed: that is, the relationship between theology and canon law. The contemporary polemicists’ view on the role that theology and canon law should play in an ecclesiastical dispute such as the Poverty Controversy largely determined their political or ecclesiological perspectives. To show this, I should like to compare, in the context of the poverty dispute, the ecclesiological views of two theologians in the so-called “papalist” and “anti-papalist” camps respectively: Guido Terreni and John Baconthorpe on the one hand, and William of Ockham and Michael of Cesena on the other. The comparison between Terreni and Baconthorpe will elucidate clearly that their contrasting attitude toward the role of canon law in contemporary ecclesiastical disputes determined the paradigms of their ecclesiologies, resulting in two entirely different ecclesiologies, save the fact that they were both aimed at defending the position of Pope John XXII on Franciscan poverty. The comparison between Ockham and Michael of Cesena will reveal how their contrasting views on the nature of the Poverty Controversy—theological or canonistic—determined not only the pattern of their defense of the Franciscan doctrine of poverty but also the development of their polemics.The relationship between theology and canon law had been a perennial problem ever since the latter had grown into an independent discipline. Scholastic theologians in the thirteenth century were critical of canon law studies. Bonaventure, for example, affirmed theology’s superiority over canon law: he wrote that theology questioned propter quid, whereas canon law enquired into [End Page 418] quia. Bonaventure, following Aristotle, asserted that there are higher and lower sciences, and what for the higher science, theology, is the conclusion of its enquiry is for the lower science, canon law, its starting point. 4 Thomas Aquinas considered that the intrusion of the decretalists into theological matters was disagreeable and ridiculous, 5 as did Roger Bacon. 6 These theologians’ comments testify to the antagonism between theologians and canonists in the thirteenth century. Lawyers, too, were fully aware of this situation, as seen... (shrink)

Natural law has long been considered the traditional source of Roman Catholic canon law. However, new scholarship is critical of this approach as it portrays the Catholic Church as static, ahistorical, and insensitive to cultural change. In its attempt to stem the massive loss of effectiveness being experienced by canon law, the church has to reconsider its theory of legal foundation, especially its natural law theory. Church Law in Modernity analyses the criticism levelled at the church and puts (...) forward solutions for reconciling church law with modernity by revealing the historical and cultural authenticity of all law, and revising the processes of law making. In a modern church, there is no way of thinking of the law without the participation of the faithful in legislation. Judith Hahn therefore proposes a reformed legislative process for the church in the hope of reconciling the natural law origins of church law with a new, modern theology. (shrink)

Within the Irish government there is a discussion regarding the possibility of limiting the legal protection afforded to the confessional secret. This paper addresses the question of whether this suggestion, if it were to be implemented by the legislature, would be compatible with the right to religious freedom under Article 9 of the European Convention on Human Rights (ECHR). This text will also highlight the role of the confessional secret in canon law and the protection of it under German (...) law. Catholic priests, should this plan that is currently under discussion be implemented, were obliged to disclose the knowledge gained in confession to law enforcement authorities. The canonical consequence of such a breach of the confessional secret would be excommunication. In such cases priests therefore would only have the choice between breaking the law (which would probably also be punishable under criminal law) and excommunication, with all the resulting disadvantages. In this paper, the canonical law rules regarding confession are presented before the provisions relating to the confessional secret in § 53 para. 1 No. 1 of the Code of Criminal Procedure, § 383 para. 1 No. 4 of the Code of Civil Procedure and § 139 para. 2 of the Criminal Code are discussed. Specifically, the question is raised as to whether a duty of priests to co-operate with the law enforcement authorities may be established by law. Here in particular the protection of the confessional secret under the protection of freedom of religion under Article 9 of the European Convention on Human Rights will be discussed. It has to be noted however that the protection afforded by Article 9 of the European Convention on Human Rights extends far less than the scope of § 53 para. 1 No. 1 of the Code of Criminal Procedure, § 129 para. 2 of the Criminal Code and § 383 para. 1 No. 4 of the Code of Civil Procedure, as Art. 9 ECHR only protects the confessional secret as far as it is required from a religious point of view, but not a general pastoral secret. The article then includes a discussion on the limitations of Article 9 ECHR. Limitations of Article 9(1) ECHR on religious freedom under Article 9(2) ECHR are only permitted if they are prescribed by law and necessary in a democratic society for the protection of public order, health, morals or the rights of others. This is discussed against the background of the legislative goal of more effective law enforcement. As a result, a limitation of the protection of confessional secret through normal (sub-constitutional, domestic) laws, despite the understandable goal of more effective law enforcement, is not compatible with Article 9 of the ECHR. (shrink)

This article analyzes the treatment of music in Buddhist monastic life through the rules on music in Buddhist canon law within the six extant traditions, which are preserved in Chinese, Tibetan, Pāli, and fragmentary Sanskrit manuscripts. These texts distinguish and differentiate instrumental and vocal music, presenting song, dance, and instrumental music as a triad and further subdividing vocal music into reciting, chanting, and singing. The performance and consumption of singing is strictly prohibited. Regulations on chanting and recitation are mutually (...) exclusive and context dependent. Chanting is required on two occasions: when one praises the Buddha’s virtues and when one performs the Tridaṇḍaka ritual. Chanting is prohibited on three other occasions: when one recites the Prātimokṣasūtra and other ordinary Buddhist texts, and when one preaches Dharma. These regulations demonstrate that text and context are decisive in determining what forms of vocal music are appropriate in Buddhist practice. The use of embellished chanting is reserved for performing rituals whose primary goal is to please divine recipients but must be prohibited when clear articulation is expected for educating the audience. Given that making or consuming vocal music is not a criminal offense, yet is strictly regulated, I argue that the establishment of Buddhist canon law was compelled by a pressing demand to demarcate and maintain a social boundary between the Buddhist monastic order and the lay community of adherents. (shrink)

Lucas, Brian Review of: The breath of the spirit in the church: The sensus fidelium and canon law, by Anthony Ekpo, Strathfield, NSW: St Pauls, 2014, pp. 260, paperback, $24.95.

This article considers the various emergence of an explicitly recognized right to life in papal teaching and the canon law of the last century and a quarter. The Church's opposition to abortion is deeply embedded within the tradition and law of the Church. It was, however, only in recent times, since the middle twentieth century, really, that the Church began to speak explicitly of a right to life. This paper explores the consequences for papal thought of this explicit recognition (...) of rights. By speaking of a right to life, the Church has moved beyond the abortion debate to embrace a variety of other concerns. This is not to say that abortion does not remain important. Direct participation in abortion is a crime at canon law that results in automatic excommunication. But the language of rights has allowed the Church to address such matters as the protection of refugees; the moral requirement of adequate health care; the odious use of child-soldiers; and the use of economic embargoes that have the effect of destroying the civilian infrastructure (and public health systems) of entire societies. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Individualization of Crime in Medieval Canon LawVirpi Mäkinen and Heikki PihlajamäkiIn The Mourning of Christ (c. 1305, fresco at Cappella dell'Arena, Padua, Italy), Giotto di Bondone (c. 1267-1337) depicts the Virgin Mary embracing Christ for the last time after he has been taken down from the cross. Whereas his predecessors in the devotional Byzantine tradition concentrated on flat, still figures, Giotto emphasizes their humanity and individuality. The (...) grief on the Virgin's face is touching and convincing but in a slightly different way than the sorrow experienced by St. John or the other accompanying figures. Even the ten angels following the scene seem to grieve for the Redeemer in their own personal way. The individuality of Giotto's figures may not seem much if we compare it with the seventeenth-century Flemish masters. Giotto's Virgin and her company still show a restraint in their grief which does not seem entirely natural. In late medieval art, however, Giotto's approach was fresh and new, reflecting a trend toward individualization which was not peculiar merely to art but was taking over many other areas of late medieval life as well. Philosophy, theology, and law—the medieval scientiae—were all putting increasing emphasis on the rights and responsibilities of the individual.Nor does this trend leave criminal law and the law of evidence untouched. The medieval development of law was just as revolutionary as the development of other branches of knowledge. Starting in early twelfth-century Bologna, the Corpus Iuris Civilis became an object of systematic academic research and teaching for the first time in history. The development of canon law was perhaps even more striking. Positive, enacted law first became not only an object of academic studies but also an instrument of social engineering in the domain of church law. The hierarchical structure of the worldwide Catholic Church was built and run in conjunction with positive, enacted legislation.1 [End Page 525] The development of criminal law was just as innovative as the changes that took place in other branches of law, with canon lawyers taking the lead. Aspiring for universal power and competing for it with secular rulers, the Church was in need of an efficient system to control disobedient priests and monks and suppress heretical movements.2 The traditional system of criminal control was clearly not sufficient. Canon law, making use of the contemporary trend toward increased individualization in theology, philosophy, and Roman law, was developed to meet the church's need to master the situation.One of the most important and influential developments in thirteenth-century criminal law concerned the individual's criminal intention and responsibility. Before the change criminal responsibility was mainly based on the consequences of a crime. The canon lawyers began to determine different modes of subjective responsibility. In the law of criminal evidence the individual was also shifted from the margins to the center of attention. Earlier criminal evidence had been produced from sources external to the individuality of the defendant, such as oaths, compurgators, and ordeals. In the thirteenth century and with the development of the so-called statutory or legal theory of proof, increasing attention was paid to the stories of both the defendant (in the form of confessions) and the witnesses. The development of criminal law and criminal procedure in the thirteenth and fourteenth centuries can be understood in the context of the simultaneous trend toward individualization that took place in moral philosophy and theology as well as in canon law.3 These connections are not the only way of understanding the modernization of canon criminal law, for the prevailing view sees the transformation in conjunction with the twelfth-century hierarchization and centralization of church bureaucracy. The particular form that the criminal law and law of proof assumed in these changes did not arise out of a vacuum but, however, has to be understood in relation to the neighboring fields of thought.The Human Will and the Individual in Medieval Moral PhilosophyThe primus motor of medieval philosophy, Aristotelianism, encountered its first competing theories in the thirteenth century. One of the most far-reaching ideas concerning human psychology and behavior, developed by the Franciscans... (shrink)