Law Through the Lens of Sociology

Abstract

Religious law such as canon law is studied best by applying a pluralist theory of the law which, besides the states, accepts other groups—such as confederations of states, contracting parties, or religious communities—as producers of law. However, applying the concept of legal pluralism requires clarification about what constitutes “the law.” Niklas Luhmann understood law as those communications operating on the basis of the binary code “legal”/“illegal”. Creating “law”, according to Luhmann, is the process of institutionalising those expectations concerning what constitutes “legal” behaviour. Luhmann’s approach may be connected with others which understand the law as a certain kind of doctrine rooted in and connected with institutions. Whilst all normativities share doctrinal qualities, it is only the law which employs institutions to provide for doctrinal consistency and, most importantly, the justiciability of its doctrines.

It is the task of the sociology of law to study the law and how it engages with the social reality of a group. With this in mind, it is worth recalling David Schiff’s observation that socio-legal scholars must always be at pains to answer two questions at once: one pertaining to society, and one pertaining to its law.¹ It is the task of sociologists of law to study the influence of law on the social life of groups, such as societies or communities, as well as the influence of social reality on the law. Whilst the one explores the organisation and control of a social group by and through law, the other examines the social conditions within which the law comes into being and evolves. This also points at the connection between law and power, which I will discuss in Sect. 4.1.

2.1 Sociological Views of the Law

In order to study law and how it interacts with the social life of a group, it is first necessary to study the social reality in which one believes the law to reside, in order to clarify which phenomena are encompassed by “law.” This includes the process of identifying the social group whose normative order it is that constitutes the law, thereby identifying the legal community which is integrated by law. The sociology of law identifies a number of different ways by which groups can qualify as legal communities. As a consequence, sociology understands “law” in several different ways.²

2.1.1 Legal Monism and Pluralism

Exponents of a monistic understanding of the law consider there to be a single source of norms we call “law,” namely the state. According to monistic theories, in modernity the state is the only source of norms of a truly legal nature; we may therefore also speak of an etatist concept of the law.³ A monistic-etatist definition of “law” therefore excludes all legal phenomena from “law” which originate from non-state agents, such as religious communities. Contributions by canonists arguing that canon law is indeed “law” can therefore be seen as ripostes to monistic incursions. Their arguments have left their mark on the theory of canon law.⁴ The debate about the nature of canon law primarily revolves around the question about whether it is possible, when speaking of canon law, to speak of “law” in a proper sense or whether it is necessary to speak of it in an analogous sense.⁵ Understanding canon law as analogous law can mean two different things, as canonist Ludger Müller observed.⁶ It might on the one hand mean understanding it as analogous to state law. In this case, state law constitutes a univocal concept of law; canon law then exists analogously to this concept. Canonist Antonio Rouco Varela notes, for example, that canon law shares many characteristics with state law, so drawing an analogy seems possible. Speaking of the “law” of the church is therefore justified and necessary, according to Rouco Varela.⁷ On the other hand, explains Müller, one might understand “law” itself as an analogous concept in order to use it as an umbrella term for all legal practices which we might then also refer to as “law.”⁸ Such an approach understands state law and canon law in the same way as analogous law, because they are both analogies based on the analogous concept of “law.” Müller, however, rejects both positions. He believes canon law is not analogous law.⁹ This is because claiming such would impute that canon law is essentially different to law in general. Instead, canon law is true law, according to Müller, albeit with its own unique characteristics. Müller finds canon law to be a law sui generis and a true realisation of “law,” just like all other forms of law such as state law, contract law, or international law.¹⁰ His premise is that the concept of law is univocal because it contains the essential DNA of law which is common to all legal systems. At the same time, he also concedes that this DNA is difficult to define, and that it requires interdisciplinary dialogue between legal studies, philosophy, and theology to clarify what actually constitutes the DNA of “law.”¹¹ I find Müller’s position rather plausible from the perspective of legal theory. Whilst I agree that it is difficult to define what makes the law (I will attempt a definition in the course of this section), plausible definitions do exist, I find, which allow us to assemble different legal traditions into a single univocal concept of “law.” However, settling the discussion on the true or analogous legal character of canon law for canon law legal theory is not of critical importance for my study, because my book focuses on the sociology of law and not on legal theory. In this study, I can therefore leave the question aside as to whether it is more convincing to understand canon law as law in a true or analogous sense. In venturing beyond this theoretical issue, it is of interest from the perspective of the sociology of canon law to note that, irrespective of whether one understands there to be a univocal or analogous general concept of “law,” both approaches seek to reject the monistic claim to a concept of “law” that is solely fulfilled by state law. Insofar as both approaches understand the general concept of “law” as being superior to canon law and state law, they actually support canonical approaches which seek to correct the monistic claim of state law which has become dominant in some fields of legal discourse.

It is most helpful to note, in any case, that canon law studies is not alone in contesting the limitations that go along with monistic claims. In this endeavour canon law studies is supported by many voices from the sociology of law. Eugen Ehrlich, one of the founding fathers of the sociology of law, was an early critic of monistic reductionism, stating that it seriously misjudged not only religious law but also other phenomena of non-state law.¹² Ehrlich was keen to point out that “law” develops and unfolds independently of state intervention. He believed in a pluralist concept of the law which included other groups besides the state as producers of legal norms. We might think of the law of confederations of states, of contract law, which emerges from an agreement between contracting parties, of legal customs which crystallise into customary law, or of the laws of religious groups that unite the members of religious faith communities.¹³ Just because the law that emerges from these various agents and in these various groups is highly heterogeneous does not mean that it has nothing in common, as the legal scholar Otto von Gierke already argued at the beginning of the twentieth century. Despite the obvious differences between the producers of legal norms, von Gierke observed that if one “scrutinises social beings with the eye of legal studies, one may discover a common basic principle of legal structuring permeating all social law.”¹⁴ Von Gierke’s thesis, which already enjoyed prominence in the socio-legal debates of the twentieth century, has been gaining currency in recent years. This is because the sociology of law, as a consequence of globalisation, has observed a pluralisation of the law in various social spaces.¹⁵ It is noticeable in the way international law has infiltrated into state law, for example in questions of human rights, or in the superimposition of transnational or international law onto national law, as in the field of commercial and business law. At the same time, the debate about the status of particular law in national legal systems is becoming increasingly topical, for example with respect to the role of indigenous law in national law or in the discussion about integrating religious laws into secular legal systems in the context of the migration debate.¹⁶ In short, legal pluralism is a factor which will come to play an increasingly important role in an increasingly globalised world. As Gunther Teubner states, this has recently served to add some weight to the theory of legal pluralism. Whilst the theory started out by examining colonial law and the law of colonised groups, the focus has now changed to prioritise the legal structures of different ethnic, cultural, and religious groups within the modern nation states.¹⁷ Nowadays, the main focus of legal pluralism is on legal phenomena at the global level. Nevertheless, my study is primarily interested in legal pluralism on a more local level, namely the phenomenon of religious law embedded in the legal systems of modern states. However, as Roman Catholic canon law claims global validity for Catholics across the world, studying the reality of canon law through a sociological lens requires both to focus on global and local issues by asking how local Catholics process global canon law to become a legal reality at the local level.

2.1.2 Ubi communitas ibi ius

“Ubi societas ibi ius” is an ancient proverbial phrase expressing the finding that societies generate their own legal orders even when they are not organised into sovereign states. Canonists of the Ius Publicum Ecclesiasticum absorbed this idea into canon law theory. Members of this school argued that the church, as an institution with quasi-state power, naturally has a legal structure. When the church had to constrain its quasi-state-like ambitions in the twentieth century, the approach of the Ius Publicum Ecclesiasticum lost some of its plausibility. Nevertheless, although the church was not able to prevail in its power struggle against the modern nation states, the axiom of “ubi societas ibi ius” has lost none of its power of persuasion. Instead, the axiom continues to provide food for thought in the present debates on what constitutes the law. It is particularly in the light of current approaches such as legal pluralism where it is most relevant. Whilst we might not conceive of all ethnic, cultural, or religious groups as “societies,” we might perceive them as groups structuring their communal life with norms of a legal nature. Hence, if we look out for legal phenomena, we may discover an essential tendency not only in societies but also in communities—following Ferdinand Tönnies’s differentiation—,¹⁸ to create order in the form of legal structuring. In light of this finding, “ubi societas ibi ius” has not lost its plausibility, and simply needs broadening into “ubi communitas ibi ius.”

Ius Publicum Ecclesiasticum’s rereading of “ubi societas ibi ius” implies a closeness to the natural law doctrine of the church, as it suggests understanding the production of “law” as a “natural” inclination among groups. It conceives of the inclination to create law as a natural aspect of human social interaction. This ecclesiastical theory enjoys some support in secular theory. Niklas Luhmann, for instance, makes an observation with similar implications, stating, “Like knowledge, law emerges in a rudimentary form in all social systems, without recourse to the official law posited and sanctioned by the state—thus in organizations, families, groups that exchange postage stamps, neighborhood relationships, and so on. No system can manage cognitive or normative expectations for any length of time without knowledge and law emerging.”¹⁹ If we follow Ehrlich, Luhmann, and others, and accept that we are indeed dealing with “law” in manifold expressions of social norms, then this lends weight to the theory of legal pluralism which accepts that “law” is also created by a significant number of non-state agents in parallel to state law. The way we look at these plural versions of law is however frequently skewed, states Brian Tamanaha, because legal theory in particular—in its quest to discover what constitutes “the law”—misleadingly insinuates that law is a single object. Contrary to that proposition, Tamanaha remarks,

Thus posed in singular terms, theorists have striven to find a set of elements for a single correct notion of law, their minds closed to the possibility that there might be multiple forms of law. … There are multiple manifestations of law, each with a collection of characteristics, none essential or necessary, and much variation amongst them. One must be open to a multiplicity of conventionally recognized forms of law to see this.²⁰

2.1.3 Spatial and Individual Pluralism

If we assume that there are indeed multiple forms of law, we may come to find that legal subjects are not solely the addressees of a single legal order, but are regularly the subjects of multiple laws. There is both a plurality of law with regard to space, where legal subjects are confronted with the demands of various legal orders in spaces in which several jurisdictions overlap, and a plurality of law with regard to personal affiliation, inasmuch as legal subjects are confronted with the demands of plural legal orders as a consequence of their various different roles, as citizens, as members of religious communities, and as insurance policyholders.²¹ Canonist Silvio Ferrari recently stated that some tensions that exist between state law and religious law may result from the fact that state law is largely organised based on the principle of territoriality, while religious communities tend to subject their members to their law personally, that is with regard to their capacity as members of the respective community.²² This observation is certainly true for canon law. Whilst canon law also relies heavily on the principle of territoriality when organising the inner structure of the church, it initially addresses its subjects as members of the church and, thus, as persons belonging to the church as a religious community (e.g. canons 11, 96, 205 CIC/1983).

The sociological considerations on legal pluralism are also helpful for determining the status of canon law in its relationship with other legal orders. A pluralist understanding of law lends itself well to a sociological study of canon law. It makes it possible to understand the church as a producer of law. And it allows the study of canon law in parallel to other legal orders to which it has a sometimes constructive, sometimes conflictive relation. Legal scholar Gary F. Bell surveyed this relationship in an enlightening contribution about the status of Roman Catholic canon law in Singapore. He examined the mostly harmonious co-existence of the two legal orders, but also the potential conflicts between state law and canon law in the light of the pluralist paradigm.²³ This paradigm permits us to understand the members of the Roman Catholic Church as legal subjects of multiple legal systems that can complement and support each other at times, but which can also end up competing with each other.

2.1.4 The Problem of Panjurism

Even though a pluralist understanding of law makes sense from a socio-legal perspective and from the perspective of the sociology of canon law, we should still note that pluralist approaches are not entirely free of arbitrariness. If we assume that “law” develops out of all kinds of social relations, this begs the question how to tell “law” apart from non-legal norms. The primary question is whether it is possible to make this distinction at all. And, if it is, then the question arises how to make it. One approach is to accept all norms as “law” which are conventionally acknowledged as “law” by a certain group.²⁴ Brian Tamanaha advocates this point of view. He notes, “Law can be anything, can take any form and serve any function, legal officials and/or people conventionally recognize.”²⁵ Tamanaha believes his approach also settles the problem of arbitrariness. This is because, in contrast to what one might expect, the criterion of a group recognising norms as “law” does not necessarily result in the arbitrary bloating of “law,” as Tamanaha observes. Whilst the law of the European Union, canon law, or sharia law are widely accepted as being “law,” the public does not understand the rules of street gangs, universities, or sports clubs as law, as Tamanaha maintains.²⁶ This is the case because we regularly do not understand agents such as street gangs as possessing the “deontic powers” necessary for creating “law.” Here, Tamanaha draws on legal philosopher John Searle’s theory that views institutions as producers of norms because of the deontic power ascribed to them.²⁷ Whilst we accept the idea of the European Union or religious communities as exercising legal deontic powers when they formulate laws, we do not generally view street gangs, universities, or sports clubs as possessing legal deontic powers, as Tamanaha argues,

Universities and sport leagues are not collectively recognized as ‘legal’ systems and do not have the legal deontic powers exercised by legal officials. The members of these very organizations do not typically view their own rule system as ‘law’, which they recognize they are subject to. Their rule systems do not establish basic rules and social intercourse, are not backed by organized physical force, and make no general claims of justice and right. Hence rule systems in general are not legal systems per se.²⁸

One might discuss if Tamanaha is really right to assume that street gangs, universities, and sport leagues are not recognised as producers of law and lack the deontic powers to create law. I doubt that Tamanaha’s examples are ideal for proving this point. Diana Villegas’s ground-breaking study on “mafia law” of organised crime in Columbia, for instance, helps to see that in the light of the legal pluralism paradigm we should not easily dismiss agents such as street gangs as producers of legal orders or rather “illegal legal” orders, as Villegas proves.²⁹ However, we may leave Tamanaha’s concrete examples aside at this point to focus on his argument that rule systems are not legal systems when they are not acknowledged as legal systems. Tamanaha’s criterion for determining what constitutes law, namely that “law” is what people consider to be law, results in a rather fluid understanding of “law.” This is something that Tamanaha freely concedes, but he does not consider this problematic. In his view, the decisions which classify rule systems as “law” are actually rather contingent and open to change. Nonetheless, these decisions, as fragile as they appear, are also in fact remarkably stable, as Tamanaha concedes.³⁰ Most of today’s secular legal scholars, for instance, accept canon law rather unquestioningly as “law,” even though from their point of view there might be reason to doubt its character as law. Once normative orders are accepted as “law,” it seems that they tend to qualify as “law” as long as they do not provide a major reason to question this classification.

Understanding “law” as a matter of conventional acceptance does however raise the spectre of arbitrariness at least in one respect, because defining law in this way attributes certain agents with the power to define what is law, as legal ethnologist Franz von Benda-Beckmann states, most interestingly with a sideways glance at the power of definition as exercised by legal studies. Some “law” is in fact “dogmatically and politically privileged as ‘legal’ by legal science”,³¹ according to von Benda-Beckmann, while other law is less privileged. However, if a legal order lacks this privileged status in the eyes of legal studies, this does not necessarily mean that it is less “legal” than law which enjoys acceptance as “law.”

Benda-Beckmann’s criticism enjoys some support in the sociology of law, albeit in a slightly reversed way. His criticism of the proposition that law is not “law” if it is not recognised as such by certain authorities is reflected in the socio-legal debate about whether, conversely, all normativity is “law” if it is acknowledged as such. Such an all-encompassing understanding of law is referred to in some areas of the sociology of law as “panjurism”³² and is rejected by many scholars as problematic. Panjurism is problematic for the sociology of law primarily because it makes “law” as its subject matter such a diffuse phenomenon. If any normative practice can be understood as “law” simply by being considered to be such, then the concept of law loses some of its definitional precision. In this light, it is no longer possible to make a clear distinction between law and other social norms. Klaus Röhl remarks, “A pluralist definition of law leaves virtually nothing for society to contrast it with. It might be useful for ethnologists, small group researchers, or legal historians. But it has no place in the modern sociology of law.”³³ Röhl’s criticism reflects similar problems deriving from the approach which understands law as discourse, that is “as a particular way of reasoning and problem-solving”,³⁴ as Roger Cotterrell explains. Two problems might derive from this approach: on the one hand, interpreting law as a form of discourse might show a tendency to miss the binding and obligatory nature of law. On the other hand, conversely, this approach cannot prevent the “juridification” of other discourses as there is no clarity about where the limits to legal discourses lie and what it actually is that limits them.

2.1.5 Law as a Coercive Order

In seeking to resolve the problem of how we may identify law under a pluralist understanding of law, a number of approaches are useful in finding criteria which distinguish law from other forms of social norm. One classic approach is that of Max Weber, which focuses on the enforceability of law and its coercive character as an essential identifier of law. Weber writes, “We shall speak of law … in all those cases where the validity of a norm consists in the fact that the mode of orientation of an action toward it has some ‘legal consequences’; i.e., that there are other norms which associate with the ‘observance’ or ‘infringement’ of the primary norm certain probabilities of consensual action guaranteed, in their turn, by legal coercion.”³⁵ This aspect of coercion is constitutive of law, as Weber notes. We may only understand as law those norms which rest on the potential for coercion exercised by a coercive apparatus. Weber defines,

‘Law,’ as understood by us, is simply an ‘order’ endowed with certain specific guarantees of the probability of its empirical validity. The term ‘guaranteed law’ shall be understood to mean that there exists a ‘coercive apparatus’ …, that is, that there are one or more persons whose special task it is to hold themselves ready to apply specially provided means of coercion (legal coercion) for the purpose of norm enforcement.³⁶

Weber is clear that coercion may take a number of different forms, such as physical force or psychological compulsion. He also emphasises that it is not only the coercive apparatus of the state which is capable of enforcing law, but also coercion as institutionally exercised by various groups addressing their own members or even third parties. Weber explains,

The means of coercion may be physical or psychological, they may be direct or indirect in their operation, and they may be directed, as the case may require, against the participants in the consensual group (Einverständnisgemeinschaft) or the association (Vergesellschaftung), the organization (Verband) or the institution (Anstalt), within which the order is (empirically) valid; or they may be aimed at those outside.³⁷

Whilst in modernity it is the state which exercises a monopoly on coercion by violence,³⁸ besides the law of the state there is also “extra state law” issued by other groups, which often enforce their law through nonviolent coercion.³⁹ For Weber, this coercion in its various forms, and especially the enforcement of law through a coercive apparatus, is the key criterion that distinguishes law from other normativities which are free from coercion, such as customs and conventions.⁴⁰ Weber defines custom as something acquired through training and as habitual behaviour which individuals engage in unthinkingly. Custom therefore operates without any coercion, based on the group members’ natural compliance with norms to which they are accustomed. On the contrary, Weber understands convention “to exist wherever a certain conduct is sought to be induced without, however, any coercion, physical or psychological, and, at least under normal circumstances, without any direct reaction other than the expression of approval or disapproval on the part of those persons who constitute the environment of the actor.”⁴¹ Hence, compliance with conventional norms is dependent on some pressure being applied by the group in the form of approval or disapproval of certain behaviour. However, it is only in “law,” according to Weber, where this pressure takes the form of physical or mental coercion.

2.1.6 Criticism of Coercion Theories

Weber’s theory found widespread support among many scholars of sociology and of law, but it also drew criticism. Roger Cotterrell for one identifies a key weakness in Weber’s argumentation being that anybody who seeks to understand coercion as constitutive of “law” is also obliged to differentiate between legal coercion and other forms of coercion, which is no easy task.⁴² In addition, not every legal matter has at its disposal a coercive apparatus; one need only think of much of constitutional law. Nevertheless, law such as constitutional law which is not directly backed up by coercion is frequently no more difficult to implement and enforce than law which has direct recourse to Weber’s coercive apparatus, such as penal law, as Cotterrell states. Legal scholar Paul Schiff Berman adopts a similar stance in his research, which focuses on the consequences of globalisation for law. He observes that law, and primarily global law, which is less constrained by nation states or territory than traditional state law, can no longer be clearly defined by referring to a power of coercion. Whilst traditional views of law have defined the law by referring to sovereignty—as a set of norms emanating from a sovereign equipped with the power of coercion—, sovereignty is no longer the key root of law in the context of globalisation, as globally effective law does not necessarily arise from sovereign powers. Gunther Teubner follows a similar line of argument and speaks of “stateless global law”⁴³ when referring to the interconnected and dense regulatory system under which multinational companies operate. The first steps towards creating this system were already evident in the age of colonialism, as Brian Tamanaha notes in reference to the legal authority of the East India Companies, “In the past, private companies have acted as de facto political sovereigns. The Dutch East India Company fought wars, entered treaties, seized land and administered territories. The British East India Company operated similarly, seizing control of much of India from Mughal rule”.⁴⁴ It is therefore possible, and even more so today, to identify phenomena of transnational or international law which exist without being rooted in state sovereignty. Tamanaha also views the European Union as constituting a key challenge to the claim that law is essentially dependent on state sovereignty.

A further point of discussion deriving from this issue is the question of who, under the conditions of globalisation, is best suited to fulfil the legislator’s role. Schiff Berman no longer views national or transnational legislators as the nuclei around which global law crystallises. The function of producing law, he believes, has to some extent been taken over by courts responsible for settling transnational and international issues. As a consequence, when examining the effectiveness of law he suggests focusing to a greater extent on the influence of judicial decisions, stating, “jurisdiction might actually be a better model than sovereignty for understanding how law operates in an interconnected world.”⁴⁵ The question remains, however, as to how suprastatal courts can enforce their decisions if not on the basis of the type of coercion traditionally exercised by states. Schiff Berman sees their effectiveness rooted in the fact that their decisions are effective de facto. They play a major part in international trade relations, exert influence on the actions of transnational players and on national adjudication, and—most interestingly—frequently do so with low levels of coercion. Schiff Berman believes their power resides in “rhetorical persuasion, informal articulations of legal norms and networks of affiliation that may not possess literal enforcement power”.⁴⁶ These alternative powers to create legal realities, Schiff Berman admits, do not speak against the significance of coercion for law. They do prove, however, that the law is not always and consistently intertwined with coercion. Schiff Berman acknowledges, “Coercive power obviously exists, and it is certainly an important (and often the dominant) factor. Yet the mere articulation of norms … may have significant though less obvious, persuasive power.”⁴⁷ This finding suggests that the coercive dimension of law might be less significant for the constitution of law than Weber assumed, with neither being fully insignificant for the functioning of law. This explains why sociologists of law who hold fast to coercion often adopt differentiated positions on coercion theory. Sociologist Georges Gurvitch, for example, believed that every law allows for coercion as a possibility but does not necessary apply or even claim it.⁴⁸ Current research has drawn some attention to this reluctance of legal orders to actually apply coercion. Legal scholar Christoph Möllers commented on this finding by pointing out that the functionality of normative orders makes it necessary to refrain from the rigid enforcement of norms and the consistent sanctioning of norm violations, because constant coercive practice would be a repeated reminder of the limits of the very same order. Möllers notes with regard to the law, “The actual employment of force imposes too obvious limitations to the legal order.”⁴⁹ The fact that the state frequently fails to act, says Möllers, should not merely be interpreted as its inability to pursue all breaches of law, but as an open decision not to sanction some breaches of law “because enforcement could, factually and normatively, entail too high a price to be paid.”⁵⁰ Other scholars such as Eugen Ehrlich, in turn, do not even accept the potential for coercion as constitutive of law. According to Ehrlich, law “can do” coercion, but it is not coercion nor the possibility of coercion that constitutes legal orders. Ehrlich cites an aphorism ascribed to French statesman Charles Maurice de Talleyrand to illustrate the problem of founding law on coercion or its possibility, noting, “The French express the thought that the state cannot permanently base its right upon might in the very expressive words: On peut tout faire avec les baionettes, excepté s’y asseoir.”⁵¹ This picture is even more powerful in Ehrlich’s original German wording, as Ehrlich slightly changes Talleyrand’s aphorism. He translates it as the impossibility of sitting on bayonets, instead of conjuring the image of leaning on them. So while he considers coercion as an effective means for enforcing the law, he doubts that law based solely on coercion or the possibility of coercion could ever provide a group with a comfortable base to sit on, that is with a stable order worth living under. Ehrlich’s image that it is difficult to sit on bayonets illustrates well that we do not gain a good understanding of the legal order by viewing it only through the lens of theories of coercion. Law is, after all, an order which frequently provides for relatively comfortable seating, at least for most of its subjects at most times. Focusing on coercion, Manfred Rehbinder notes, only provides us with a narrow view of the merits of law as it focuses exclusively on the exceptions, namely breaches of law, whilst leaving out the rule, namely everyday life.⁵² Whilst the coercive side of law reveals itself in certain situations—in exceptional cases—, the legal subjects’ everyday experience of law is not the experience of permanent coercion. In Sect. 3.1 I will deal with this topic, namely that legal subjects are not even really “aware” of law in their everyday lives most of the time, as the law constitutes a largely invisible basis for our social interactions. At this point in my study, it is sufficient to observe that defining law by coercion does not accurately reflect the phenomenon of law in its full sense. This is because coercion theories fail to sufficiently acknowledge the typical quality of the law as an invisible order which structures the legal subjects’ everyday lives at most times without applying or even claiming coercion.

2.1.7 Low-Level Coercion of Canon Law

The view that it is imprecise to define law based on its coercive character is of considerable significance for canon law. This is because the law of the church is only partially coercive. In the context of modernity, observes dogmatic theologian Georg Essen, the ecclesiastical cultures no longer represent themselves as cultures of coercion.⁵³ The church is accordingly no longer in a position whereby it can depend upon coercion to enforce most of its norms. And it must get by for the most part without Weber’s coercive apparatus. Whilst canon law possesses an adjudication system, it has no body to perform policing functions to exercise the sovereign enforcement of canonical claims on ecclesiastical legal subjects. Nevertheless, some canonists such as Peter Krämer view the enforceability of law as a self-evident characteristic of law—and therefore also of canon law.⁵⁴ Similarly, Antonio Rouco Varela sees an essentially coercive mechanism in the penal options available to canon law.⁵⁵ However, the critical question remains as to whether canon law possesses the institutional preconditions to make its character as law dependent on the enforceability of its legal norms. In fact, as things stand, the church has only limited options available to coerce its members into acting in accordance with canon law, and it has likewise only limited options to effectively sanction errant behaviour. In addition, canon law can no longer rely upon coercion as it could in the premodern period, by relying on the brachium saeculare whereby the state lent the church its coercive mechanisms.⁵⁶

In addition to these practical failures to attribute canon law with coercive power, there are also theological reasons for being sceptical about defining canon law through coercion. Nowadays, the church largely uses theological arguments to justify its law. The church views its law as legitimate because it serves the faith and the community of the faithful on their path to salvation. Canon law is therefore essentially a normative order in the service of the faith. However, as canon law is only legitimised by its service to the faith and the community of the faithful, it cannot therefore exist apart from the principle of freedom which is integral to the act of faith. Faith is inseparable from freedom. “The act of faith is of its very nature a free act”,⁵⁷ states the Second Vatican Council in the Declaration on Religious Freedom Dignitatis humanae. As faith is essentially reliant on human freedom, there is no faith apart from individual autonomy as the human beings’ capacity and right to govern themselves.⁵⁸ This makes faith and coercion fundamentally incompatible. In canon 748 §2 CIC/1983 we discover the following rule, “It is never lawful for anyone to force others to embrace the Catholic faith against their conscience.” This prohibition is not only a command to refrain from the use of coercion in matters of faith, but offers the deeper anthropological insight that faith actually cannot be imposed through coercion because it rests upon the individual’s free inner affirmation of the gift of faith. Consequently, a legal order that exists to serve the faith must by necessity sit rather uncomfortably with the idea of coercion for theological reasons, as canonist Peter Huizing observes. Huizing maintains, “In church it is pointless to impose or enforce external compliance with or non-infringement of a provision without considering the church member’s inner attitude towards it. All church members need to experience canon law as law, but not as enforceable law. Its validity is based on free consent given by the community of faith.”⁵⁹ Canonist Ladislas Orsy argues along similar lines. If compliance with the law in church is related to the act of faith, he argues, then it must be subject to the appropriate conditions, namely that individual decision and conscience are key. Orsy insists, “It would be immoral to ask an intelligent and free person to perform an act, even in obedience to a law, if he had not reached a personal judgment that the act was in pursuance of a true value and if he had not decided freely to do it.”⁶⁰ Canon law and coercion therefore do not go together well—neither practically nor theoretically. Adherents of Weber’s understanding of legal orders as coercive orders therefore find it hard to accept canon law as “law.” Conversely, a sociology of canon law which conceives of canon law as law will have little room for coercion theories either.

2.1.8 Beyond Coercion Theories

So if it is not coercion that makes up the character of law, then this begs the question what does then in fact constitute law. In seeking to find an answer, it is quite enlightening to look back at Weber’s statements, insofar as these hint at the fact that law is an order “endowed with certain specific guarantees of the probability of its empirical validity”.⁶¹ However much one might criticise Weber’s assessment that the probability of the empirical validity of law necessarily rests on coercion, we may agree that one characteristic of law is that it is valid and that this validity must be empirically viable, that is that law must have some legal effect. With this in mind, Paul Schiff Berman defines law as an instrument for shaping the future, the fulfilment of which is dependent on the legal subjects’ abiding by the law. He states, “the essence of law is that it makes aspirational judgments about the future, the power of which depends on whether the judgments accurately reflect evolving norms of the communities that must choose to obey them.”⁶² But one may ask what the basis is underlying the prospect of abiding by the law, if it is not coercion. Socio-legal scholars who are averse to coercion theory have provided a number of different answers to this question. Eugen Ehrlich, for instance, saw many legal norms and their effectiveness based less on coercion and more on suggestion, as he explains, “The most important norms function only through suggestion. They come to man in the form of commands or of prohibitions; they are addressed to him without a statement of the reason on which they are based, and he obeys them without a moment’s reflection.”⁶³ Ehrlich found that humans tend to accept norms habitually when they are presented to them by their environment, noting, “it is not a matter of conscious thinking, but of unconsciously habituating themselves to the emotions and thoughts of their surroundings.”⁶⁴ Echoing Weber’s thoughts on custom, Ehrlich believes that law gains its effectiveness because people abide by it as a matter of routine or habit. Here, Ehrlich made no categorical difference between legal norms and non-legal norms. All social norms can be internalised in such a way that individuals abide by them without conscious thought. This view also makes a reappearance in the current sociology of law, namely in reflections about the way in which norms take effect. Legal sociologists Hubert Rottleuthner and Margret Rottleuthner-Lutter, for example, point out that we may not always understand legal norms instrumentally, that is as instruments for bringing about desired effects or suppressing undesired effects by pushing the legal subjects to behave in a certain way, but should also perceive the expressive, declarative, or symbolic functions of norms.⁶⁵ Scholar of environmental science Jens Newig explains the difference between instrumental and symbolic effects of laws with regard to his field of research, environmental legislation. He understands as instrumental those laws which serve an explicit purpose and operate directly to attain that end, while only indirectly and in the long run seeking to change certain social conditions. In contrast, he understands as symbolic those laws which also serve certain yet less explicit purposes and aim at mostly political effects by conveying a certain political message to the legal subjects.⁶⁶ One might criticise this definition for several reasons, above all for its rather weak understanding of symbolic functioning. What Newig rightly emphasises though, is that laws might become effective by operating either through instrumental or symbolic means. Whilst instrumental laws directly push to achieve their ends, symbolic laws bring about the desired legal reality by using symbols which represent that reality. Instrumental laws forbid and criminalise the pollution of rivers to prevent water pollution. Symbolic laws introduce a recycling system. So whilst they do not criminalise those who refrain from recycling, they do create an awareness for environmental issues, using symbolic norms to represent an environmentally-friendly system for bringing about an environmentally-friendly reality in the long run. In any case, a symbolic functioning of the law should not be considered less effective. Rottleuthner and Rottleuthner-Lutter reference legal history to show that in the past, laws have frequently had significant effects on legal communities through symbolic functioning. In such cases, symbolic norms frequently achieved the greatest effect when they expressed vibrant ideas and values which were shared by the legal community of their time. Thomas Raiser echoes these observations. He speaks of symbolic effects of the law in those cases in which the legal subjects espouse a law openly and abide by it quite naturally.⁶⁷ The effects of symbolic norms result in such cases from a process of adoption and internalisation. Legal coercion, in contrast, has little role to play in this type of context. Eugen Ehrlich might agree with these observations on the effectiveness of symbolic laws. Moreover, he would no doubt also broaden the idea of laws being naturally effective based on internalisation to encompass many instrumental laws, too. Ehrlich made the general observation that individuals largely abide by the law “without a moment’s reflection”,⁶⁸ mostly on the basis of their normative childhood conditioning. Rather than abiding by the law because the law says so, they abide by the law guided by feelings such as their peers’ approval or disapproval of a certain behaviour. Ehrlich understood social interaction as an ongoing process of legal education. The legal subjects, as Ehrlich saw it, are permanently imprinted with those feelings aroused in society or in a group when they act contrary to the law. Ehrlich even made explicit reference to canon law in his observations. He referred to ecclesiastical law as an example of a stable order which successfully integrates the legal community without the use of coercion, noting, “Both friend and foe admire the compact structure which is seen everywhere in the Catholic Church, in its legal order no less than in other respects. Nevertheless the ecclesiastical law is enforced only to a very small extent by the state; and where separation of church and state is in effect, not at all. It rests, as a whole, chiefly on a social basis.”⁶⁹ It is a matter of debate whether Ehrlich’s view of the effectiveness of canon law is still true today; I will take up this problem of canon law rapidly losing its effectiveness again later in my study. At this point in my study, in the search for a viable socio-legal definition of law, it is not necessarily the issue of effectiveness that is key, but the question of whether Ehrlich’s concept of a minimally coercive law is reliable and convincing in determining what law actually is under modern conditions. After all, Ehrlich’s assumption that individuals tend to accept law as a self-evident fact—however much of a soft spot I have for this concept—is based on the idea that there is an essential homogeneity of legal communities, something which is increasingly hard to claim nowadays. The question arising from Ehrlich’s proposition is what happens to “law” when legal communities become more diverse and therefore less inclined to accept legal norms more or less unquestioningly. In increasingly diverse societies or communities it is also becoming increasingly unlikely that breaches of law are consistently met with the group’s disapproval. As the homogenous social foundation upon which Ehrlich places law and even canon law can no longer be taken for granted, it becomes increasingly difficult to understand as “law” those norms which individuals abide by to avoid the group’s disapproval. However, if it is not coercion which constitutes law either, we might then ask what the binding forces which provide for the stability of norms we call “law” in plural groups actually are. Confronted with these questions, modern pluralist societies and with them the sociology of law face something of a quandary. This quandary includes canon law studies. The assumption that church members might be forced to abide by legal norms bears not much relation to modern ecclesiastical reality. However, the assumption that legal compliance in church is a result of the legal subjects’ imprinted and natural reaction to canon law is likewise unrealistic. I will take up the debate about the effectiveness of law and of canon law in particular in the sixth section of this study. In the present context, however, I have to clarify which norms can be identified as law from a socio-legal perspective, if it is neither coercion nor natural compliance which serve as Weber’s “certain specific guarantees of the probability of its empirical validity”.⁷⁰

2.1.9 Law as Behavioural Expectation

Niklas Luhmann provides us with an alternative definition of law. Luhmann’s understanding of law draws on the concept of expectation. He conceives of law as a means of communication which operates using the codification “legal”/“illegal.” This binary code serves to identify communications as legal. These communications constitute a social system as a structure of “congruently generalised normative behavioural expectations”.⁷¹ Law thus derives from the generalisation of behavioural expectations which can be identified by applying the code “legal”/“illegal.” Whilst the above-mentioned approaches to defining law rest primarily on the issue of behaviour and behavioural control by law, Luhmann ascribes a subordinate role to the legal subjects’ actual behaviour. He states with respect to the law, “Its primary function does not lie in bringing about a certain type of behaviour, but in the reinforcement of certain expectations.”⁷² Whilst members of society can endure a considerable degree of uncertainty about the factual behaviour of others, they are less tolerant with regard to uncertainty in their expectations, as Luhmann notes, “Uncertainty of expectation is far harder to bear than surprises or disappointments.”⁷³ This focus on the stability of expectations, and less on the stability of behaviour, has consequences for Luhmann’s understanding of what constitutes the law. He maintains, “Law is only law if there is reason to expect that normative expectations can be expected normatively.”⁷⁴ However, if expectations are what define law, it is still essential not to lose sight of legal subjects’ behaviour. This is because law results in some behavioural control, as Luhmann notes, “expectations and behaviour stabilize each other”⁷⁵. Nevertheless, it is expectation that first makes a certain type of behaviour legally relevant by turning it into legal or non-legal behaviour. Luhmann states, “Only the expectation of expectations ensures behavioural harmonization beyond purely random conformity.”⁷⁶ At the same time this presupposes that expectations are not formulated instantaneously and at will, but are well structured as a stable source of expectation. This stable structuring of the law supports one of the primary achievements of law, namely that it serves as a major reducer of complexity in modern pluralist societies. Luhmann explains,

If one also factors in that we are dealing with a multiplicity of people and a multiplicity of potential topics of experience and actions, it becomes clear that it would far exceed the individuals’ abilities to know what to relate to if they had to concretely and completely evaluate these expectations of expectations, or even expectations of expectations of expectations, on a case-by-case basis. Instead, individuals form meaningful structures—that is general patterns of experience and behaviour—which allow them to preselect from a list of anticipated expectations and to reduce the complexity of the options to such a degree that they can make a quick decision about their behaviour based on the situation before them.⁷⁷

However, if we understand law as relatively reliable expectation, this begs the question what consequences arise when the legal subjects do not meet the behavioural expectations of the law. As Luhmann notes, “norms produce a higher degree of certainty of expectation than is warranted by behaviour”⁷⁸. Therefore, the question evidently arises about how to deal with the problem that expectations are frequently disappointed. Luhmann outlines two basic possibilities: one can either give up the expectation, or abide by it and instead classify the reality that diverges from the expectation as a disappointment.⁷⁹ With normative expectations—including legal ones—the regular reaction is frequently the latter one, according to Luhmann. If certain behaviour contradicts a norm, we frequently do not amend or surrender the norm, but classify the behaviour diverging from the norm as disappointing. Unlawful behaviour does not therefore pose a challenge to the law. Hence, the law does not stop being law because of unlawful behaviour. Luhmann refers to the concept of counterfacticity to underline his belief that the validity claim of the law continues to exist even when the normative expectations associated with it are not consistently fulfilled. He refers to legal norms as “counterfactually stabilised behavioural expectations”⁸⁰ insofar as they are expectations which individuals maintain even in cases in which they are disappointed.⁸¹ It is worth mentioning though that Christoph Möllers recently contested this Luhmannian concept of normative counterfacticity. Möllers criticised that speaking of “counterfacticity” implies an unintended dualism between norms and facts, which would be misleading. He therefore suggests replacing the term with “afacticity,” explaining,

The prefix ‘counter’, however, it [sic] too strong an expression if one does not want to imply that normativity and facticity stand in an antagonistic relationship. … Normativity does not direct itself in opposition to the world as it is per se; rather, it opens up space both for deviation and correspondence. … For these reasons, it is more fitting to speak of the afacticity of norms, in order to express the difference to (but not competition with) facts.⁸²

Hence, we may understand norms as afactual, insofar as they prove to be fairly resistant to facts. However, this quality is not absolute. The afacticity of norms reaches a limit in those cases in which norms fully fail to connect with facts, or as Luhmann might put it, where behaviour completely fails to justify any expectations. In Sect. 6.2.7 I will discuss pathological cases of variance between expectation and behaviour in church, in which consistently unlawful behaviour leads to the erosion of legal expectations and therefore, in the light of Luhmann’s approach, also casts doubt on the legal character of the affected canonical norms.

2.1.10 Expectation, Coercion, Sanction

When studying Luhmann in comparison to Weber it is noteworthy that the principle of coercion is not fully absent from Luhmann’s concept of law, but occupies a different role to that in Weber’s approach. Luhmann explains,

Law is in no way primarily a coercive order, but rather a facilitation of expectation. The facilitation depends on the availability of congruently generalised channels of expectation … The constitutive coercive situation pertaining to law is the coercion applied to select expectations which can in turn motivate the enforcement of certain behaviour in a few, though important, cases.⁸³

Due to the stable expectations of the law, the legal subjects view it as being a low-risk endeavour to submit themselves to their expectations, that is to expect the fulfilment of the expectations they associate with the law. In this light, coercion plays a role to the extent that law compels its subjects to differentiate between their expectations and to decide whether they are legal expectations. This is the case whenever the expectations may be expressed in terms of the code “legal”/“illegal.” Whenever these expectations are indeed identified as legal expectations, the legal community might well take this as grounds for enforcing lawful behaviour and sanctioning unlawful behaviour. Yet this possibility of responding to legal and illegal behaviour with coercion does not render coercion an essential element of the law, according to Luhmann. Instead, law serves as an occasion in which to use coercion, if only in those “few, though important, cases”,⁸⁴ as we may find when studying penal adjudication. Here, the law reacts to disappointed expectations with the imposition of sanctions. Luhmann describes sanctions in this context as the “successful realisation of expectation”.⁸⁵ Nevertheless, in the majority of cases, the non-fulfilment of legal expectations is not met with coercion. Luhmann, therefore, in contrast to Weber, does not view coercion or sanctions as constitutive of law, stating “that the concept norm cannot be defined solely by reference to the threat of sanctions, let alone by reference to imposing sanctions.”⁸⁶ However, it is due to the structure of law as expectation that there is still the possibility of applying sanctions upon the non-fulfilment of legal expectations. Hence, as Luhmann states, “the prospect of sanctions is part of the symbolic apparatus that allows one to identify whether or not one’s expectations are in line with the law”.⁸⁷ This renders sanction mechanisms part of the symbol politics of the law, as Christoph Möllers emphasises. Möllers refers to sanctions in a similar way to Luhmann, calling them “reminding posts”⁸⁸ of norms. He explains, “The sanctioning responding to a norm transgression highlights both said transgression and the existence of the norm. … More precisely, a sanction cannot (directly) serve to implement the norm, as it only kicks in after the transgression. Primarily, it should remind the community of the existence and value of the norm. It plays an assuring and expressive role”.⁸⁹ Hence, sanctions remind the community of norms, including legal norms, but do not constitute them. In Luhmann’s definition where norms are expectations, these expectations include the expectation of sanctions. In Möllers’s approach where norms are possibilities, these possibilities include the possibility of sanctions, yet in both cases without sanctions becoming an essential element of norms, not even of legal ones. This observation is critical for the unfolding discussion; Sects. 3.2 and 6.2 below will address canonical sanctions in this respect.

Summing up the aforementioned thoughts briefly and with regard to their merit for my study, Luhmann’s theory proves to be well suited as a theoretical basis for a sociology of canon law. Not only has his approach received widespread acknowledgement among scholars of the sociology of law. It is also an approach which enables us to understand canon law as law, even though canon law is in fact and also theologically a legal order with a low level of coercion. Adding to this, Luhmann’s approach makes it possible to understand canon law as law, even though time has eroded its self-evident role in the everyday lives of the faithful, a role which Eugen Ehrlich could still take for granted at the outset of the twentieth century. With Luhmann we may understand canon law as a system of counterfactual (or in Möllers’s diction: afactual) behavioural expectations. The provisions of canon law map out prearranged pathways of expectation which exist irrespective of whether the ecclesiastical legal subjects abide by the law or disappoint legal expectations. At the same time, the widespread non-compliance with many provisions of canon law begs the question what happens when certain expectations of canon law become largely void. Following Luhmann, one may ask if canon law continues to be “law” when it loses its character of expectation. Adding to this, one has to consider that the non-fulfilment of canon law as an expectation increasingly fails to disappoint. Following Luhmann one may ask if canon law continues to be “law” when the legal community or greater parts of it no longer find breaches of canon law disappointing. I will address this problem in greater depth in Sect. 6.2.7.

2.1.11 Norms and Facts, Norms as Facts

A sociological concept of law which takes the legal expectations of a group as its point of departure reveals that law has a normative level connected with social reality, and at the same time has a factual level influenced by those norms. This challenges us to define what we understand by “law”—the legal norms, or the reality which is constituted by the normative order. Here, it is helpful to study Jean Carbonnier, who differentiates between primary and secondary legal phenomena. Carbonnier defines primary legal phenomena as forms of law, such as legislative texts, judicial verdicts, or the hand signals of traffic police.⁹⁰ These in turn generate secondary legal phenomena, legal content, such as statutes, convictions and acquittals, and the motorists’ stopping at a crossing. In the sociology of law, law therefore frequently has a double meaning, indicating both legal prescriptions as well as the legal reality generated by them. Roger Cotterrell states,

law consists of prescriptions—‘ought propositions’ specifying the way legal subjects ought to behave. Yet at the same time it constitutes a social phenomenon which only ‘exists’ if the prescriptions of conduct actually have some effect on the way people think or behave. Law is thus both prescriptive norm and descriptive fact. It is to be considered in terms of its validity and also its efficacy.⁹¹

Cotterrell’s quote contains two insights which are important for socio-legal scholars and which are omnipresent throughout socio-legal studies: first, law consists of norms and facts, as speaking of “law” incorporates legal provisions as well as legal practice. Second, the sociology of law derives from this finding that issues of legal validity always go hand in hand with issues of the effectiveness of law. In contrast to approaches of legal theory, the sociology of law cannot turn its back on the question of legal effectiveness. I will discuss this issue in greater depth in the sixth section of this study.

Niklas Luhmann points out the theoretical impossibility of deriving norms from facts.⁹² However, the sociology of law devotes itself to the dual study of norms and facts, while actually viewing norms as facts. This acknowledges the fact that norms maintain a consistent connection to reality, as Christoph Möllers points out, “Norms are not some form deficient in reality but rather a curious cultural achievement in which imagination and capacity for abstraction must come together with reality.”⁹³ However, viewing norms as facts presents a methodological challenge for the sociology of law, as Luhmann observes. He believes a particular “theoretical achievement of the sociology of law lies in explaining how it treats norms as facts, meaning: what conceptuality does it use to generate the theoretical relevance and connectivity of the particular fact known as ‘norm’.”⁹⁴ A particular challenge is how to determine how norms as facts are different from other facts, especially from social facts which influence the development of norms. In consequence, we need to clarify how normative facts can be separated from social facts while at the same time acknowledging that they relate to each other. Connecting norms and facts is a dialectical endeavour. The normative world, as Möllers notes, “is a counter-world that is part of the world.”⁹⁵ Therefore “it is imperative to grasp the curious circumstance that norms can claim their autonomy from this world while being part of it.”⁹⁶ Möllers examines the characteristics of norms from the viewpoint of norm theory. But his thoughts are also of use to sociology, insofar as they help to clarify how the curious facts we call “norms” exist in relation to other facts. In his theory, Möllers locates norms in close relation to other facts as a matter of necessity, but at the same time as facts detached from those other facts. He explains,

Norms are to build up and maintain a distanced tension with the world. Norms that only codify what will inevitably happen gain no distance; they can ultimately not be distinguished from the world as it is. Conversely, norms that remain so distant from the circumstances of the world that there can hardly be any talk of their affirming a ‘possibility’ either remain meaningless, since that which is normed by them is so distant that it has no perspective for realization, or they aim for effects that no longer show any consideration for the state of social practice, thereby tearing apart the social fabric.⁹⁷

To be identifiable as “norms,” norms cannot therefore simply become indiscernible from facts on the one hand, nor may they exist at too great a distance from them on the other hand. This dialectic, in which Möllers proposes that norms exist in relation to the world but at the same time at a distance to it, resonates in the minds of Catholic theologians, inasmuch as the connection with and distance to the “world” rings an ecclesiological bell. The ecclesiological quest for a concept of “church” which comprehends the church as part of the world as well as part of a counter-world permeates through the texts of the Second Vatican Council and has been a matter of ecclesiological debate ever since.⁹⁸ This debate also serves as the point of departure for ecclesiastical legal theory and its considerations about how to conceive of the ecclesiastical legal order if we understand it as an order of the church, which has, in consequence, to adequately reflect this dialectic of identity and distance between the church and the world. Reading Möllers shows that this core issue, with which ecclesiology and canonical norm theory both grapple, is intimately connected with norm theory as such. The norm-world dialectic is an integral part of how normativity is constituted, as Möllers sees it. Hence, ecclesiology is grappling with a similar problem to norm theory. It must explain how it is conceivable to go about “simultaneously distinguishing and connecting the normative and the factual, treating both autonomously and in relationship to each other”.⁹⁹ In ecclesiastical legal theory, this problem is duplicated. Here, the issue of intimacy and distance between norms and facts must be addressed both in relation to the church itself as well as in relation to ecclesiastical norms of a social, moral, or legal nature.

2.1.12 Law in Books, Law in Action

Inasmuch as norms maintain a distance to the “world” but are at the same time part of it, the question remains how to identify them. This challenge is particularly difficult when the distance of norms from the “world” is almost negligible. Christoph Möllers addresses this question. He seeks to identify norms and distinguish them from the “world” by looking out for elements of formalisation. Norms, as Möllers finds, possess formal characteristics to ensure that they are distinguishable from other facts, for instance by inserting a norm into a formalised rule.¹⁰⁰ By identifying these formalised features it is possible to assign phenomena to those facts which we call “norms.” Norms are also norms without formalisation, as Möllers concedes. Yet as formal characteristics help to identify norms, we tend to rely on these formalities to disclose norms as norms. The sociology of law is in any case interested in all norms of the law. In consequence, it cannot restrict itself to the study of norms which we may formally identify as legal prescripts. Instead, the sociology of law must cast its net wider to include those norms that are in fact legal norms as they exert a de facto influence on legal practice. To distinguish between those formal and those rather informal norms of the law, sociologists of law today often refer to a differentiation which Roscoe Pound elaborated, distinguishing between “law in books” and “law in action.”¹⁰¹ Pound’s distinction corresponds with Eugen Ehrlich’s frequently quoted observation that legal norms do not arise from books but from social practice. Ehrlich devoted himself to the “study of the living law”¹⁰² which he understood as law which “has not been posited in legal propositions”,¹⁰³ and is therefore not imprisoned in statutes, rulings, or other official legal texts. In addition to those norms reified in legal texts, Ehrlich found legal norms to flow from conventions and customs. As sources of “living law” he relied on “the modern legal document; secondly, direct observation of life, of commerce, of customs and usages, and of all associations, not only of those that the law has recognized but also of those it has overlooked and passed by, indeed even of those that it has disapproved”.¹⁰⁴ According to Ehrlich, we should not understand it as a weakness of “law in books” that “living law” is much more than those norms laid down by official legislation, adjudication, and administration. It is rather a natural phenomenon, as Ehrlich states. As “law in books” is always a product of the past and therefore only able to regulate the present to a certain degree, it is a natural matter that “our codes are uniformly adapted to a time much earlier than their own, and all the juristic technique in the world would be unable to extract the actual law of the present from it, for the simple reason that it is not contained therein.”¹⁰⁵ Hence, as Ehrlich adds, it is not only that legal codes do not contain the “living law” by chance, but that they are essentially incapable of containing it as “the legal relations with which they deal are so incomparably richer, more varied, more subject to change … that the mere idea of making a complete presentation in a code would be monstrous.”¹⁰⁶ Sociologies of law cannot therefore limit themselves to the study of “law in books,” but must also address how “law in action” augments, amends, or even contradicts the written rules of law. In this light, the sociology of canon law must also address how “living” ecclesiastical law augments, modifies, or supplants positive canon law.

One authorised example of ecclesiastical “law in action” is customary law, formed from a local practice of legal customs. Customs may go beyond positive law—generating authorities, duties, rights, and sanctions which positive law does not cover—or are contrary to it—introducing authorities, duties, rights, and sanctions which contradict those of positive law. Canon law only explicitly rules out the formation of customary law in cases in which customs are incompatible with “divine law” (see canon 24 §1 CIC/1983). Other customs which go beyond the law or are unlawful become customary law after having been practiced for a full and uninterrupted span of thirty years (see canon 26 CIC/1983). A shorter period applies when the legislator gives special approbation to a custom. However, one also has to note the restrictive conditions for the emergence of customary law in canon law (see canons 23–28 CIC/1983). First, for customs to become customary law it requires a community of the faithful to take up a custom with the intention of introducing it as law (see c. 25 CIC/1983). In addition, a custom only regularly obtains legal force upon receiving the legislator’s approval (see canon 23 CIC/1983). Ecclesiastical customary law therefore derives from a twofold dynamic. It grows from the bottom up insofar as a group in church establishes a customary practice. But it also requires top-down acknowledgment, as customs do not grow into customary law without the legislator’s consent. A custom without the legislator’s approval can acquire the quality of a law, but only after it has been practiced for many years and has remained unchallenged by the legislator, which one might understand as the legislator’s tacit consent (see canons 26, 28 CIC/1983). Customary law in church therefore requires either the active involvement of the legislator in its formation, or his passive tolerance of its existence. This restriction has consequences for customs as ecclesiastical “law in action.” On a practical level one may observe with Ladislas Orsy that canon law easily allows ecclesiastical authorities to suppress the emergence of customary law, which is also what happens in fact.¹⁰⁷ In terms of the sociology of law, the situation in church is therefore that “law in books” strictly controls customary “law in action” and, as a result, largely prevents its formation.

This gives rise to the further question to what extent positive canon law exerts a restrictive effect on ecclesiastical “law in action” in general. This question is difficult to answer: it would require a targeted in-depth study on the relationship between statutory and living law in the church. However, the first impression one gains when examining statutory canon law is that the ecclesiastical legislator seeks to control the formation of “law in action” in general and deals with it restrictively as a matter of principle. One example may be found in the canonical regulations on associations where the law provides church authorities with manifold reservations allowing them to control the emergence and the content of the ecclesiastical associations’ law to a great degree (see canons 299 §3, 314, 587 §2, 595 §1 CIC/1983). This overall top-down dynamic in church makes it difficult for “living law” to grow and flourish.

The insistent inclusion of church authorities in the formation of customary law and the emergence of other bottom-up law is also interesting in the light of the sociology of law, for a reason discussed by Brian Tamanaha. Tamanaha points out that the involvement of official agents in the development of customary law decreases the probability of customary law being real “living law.” He observes that customary law tends to lose its reference to the de facto customs of a local group as soon as representatives of the official legal system become involved in its formation or are relevant for its continued existence. Tamanaha notes, “‘customary law’ recognised by official legal systems does not necessarily match actual lived customs.”¹⁰⁸ For ecclesiastical customary law, this means that the involvement of the church authorities in the emergence of customary law as required by canon law can lead to customary law becoming detached from genuine local customs. This in turn threatens to deprive customary law of its character as true “law in action.” This issue merits a study of its own which could examine in greater depth the degree to which the ecclesiastical authorities’ approach to controlling the formation and existence of “living law” affects the character of the ecclesiastical legal system as an order composed of “law in books” and “law in action.” Previous studies have identified a tendency in canon law to prefer “law in books.” However, in light of the effectiveness of law, this also means that canon law is at risk of becoming a mere “law on paper”¹⁰⁹ which exists in written texts, but is largely ineffective in real life. I will continue to examine this problem in Sect. 6.2.7.

2.1.13 Institutionally Bound Doctrine

Having discovered legal norms in “law in books” and “law in action,” the sociology of law must take a further step and clarify which of the norms influencing social practice are truly legal norms. My study has already referred to the temptation to succumb to the “panjurism” inherent within pluralist approaches to the law, to consider all social norms legal, and to run the risk of becoming arbitrary in distinguishing diverse normativities from one another as a consequence. We therefore need a criteriology which permits the identification of norms as legal norms. One first step towards solving this challenge, as I find, is provided by approaches which only recognise social norms as “law” when these derive from and are embedded in legal institutions as systems of legal norms. Brian Tamanaha, for instance, in critically scrutinising pluralist approaches to the law, states that legal pluralism tends to identify two phenomena as law, namely institutionally embedded social norms and their enforcement, and de facto social structures ordering the social.¹¹⁰ However, as Tamanaha finds, the only candidates that really qualify as “law” are norms embedded in legal institutions. However, clarification is needed about what exactly it is that constitutes a legal institution. For the purposes of differentiation, Tamanaha finds it helpful to speak of “law” only when institutional structures are in place to allow for the application of norms. Hence, we may find institutions to be legal institutions when they also provide for the application of norms which they provide and embed. Harold Berman labelled this approach, which defines law as norms based on and connected with legal institutions—which are largely autonomous in comparison to other institutions—, a characteristic of western legal thought.¹¹¹ Berman wonders whether this approach would find acceptance in non-western legal cultures. Nevertheless, in the search for a definition of ecclesiastical law it is certainly of value. The institutional foundation of law can—in accordance with the western understanding of law, upon which canon law is also based—serve as a reliable legal attribute. Taking Roger Cotterrell’s lead, we may understand the contribution of institutions to defining “law” to exist in their capacity to merge doctrine and practice. Cotterrell describes law as a doctrinal system in an institutionalised framework. In doing so, he points to the importance of doctrine as an attribute of law and to the significance of institutions which create and shape the doctrine. Cotterrell notes,

Law thus consists, like many other normative systems, of rules, concepts, and principles and is distinguished from them in degree rather than in kind by the existence of an institutional structure for the development and organisation of doctrine. … Law appears as doctrine produced in, embodied in and legitimating institutional practices.¹¹²

Jürgen Habermas expressed a similar thought when he referred to law as a doctrine-based system of knowledge and as an institutionalised system of action. He stated, “It is equally possible to understand law as a text, composed of legal propositions and their interpretations, and to view it as an institution, that is, as a complex of normatively regulated action.”¹¹³ In order to distinguish between law and other regulatory systems which are also doctrine-based, Habermas introduces two distinguishing criteria: first, law as an action system differs from other normativities such as morality insofar as “legal norms have an immediate effect on action”.¹¹⁴ With respect to doctrine, Habermas refers to the high level of rationalisation in law when he notes that “the comparatively high degree of rationality connected with legal institutions distinguishes these from quasi-natural institutional orders, for the former incorporate doctrinal knowledge, that is, knowledge that has been articulated and systematized, brought to a scholarly level, and interwoven with a principled morality”.¹¹⁵ Following Habermas, it is neither the institutionalisation nor the doctrinal structure of the law in itself that makes the law, but it is the effect of law on action and its rationality which marks out legal doctrine as belonging to an elaborate knowledge system. The significance of this latter characteristic for identifying law as law is of such importance to the criminologists Karl-Ludwig Kunz and Martino Mona that they define law as a three-dimensional phenomenon consisting of normativity, facticity, and logical systematicity.¹¹⁶ So whilst all forms of social normativity work with abstract principles—and therefore possess doctrinal features—it is a particular characteristic of legal norms that they are institutionally embedded in an established regulatory system that not only contributes to the production of concrete rules but also to the production of a consistent doctrine. Accordingly, legislation, adjudication, and administration not only create legal norms but also contribute to the formation and development of legal doctrine. They produce doctrine via their institutional practices, insofar as they contribute to the development of doctrine by applying the legal norms to concrete facts. These contexts of applying the law merit additional scrutiny to understand what law is. Jean Carbonnier has contributed to understanding the connection between law and its application by defining law as norms and contexts of a questioning and challenging nature. For Carbonnier the essence of law does not lie in coercion but in the potential of the law to question facts and to challenge them. Carbonnier speaks of an “interrogative nature” of the law, which he understands as typical for the law.¹¹⁷ The specificity of this interrogative structure of the law, in any case, is that the law allows us to challenge facts not merely privately, but in institutional form. By applying legal norms to concrete cases, the law creates procedures and verdicts as “institutions of contestation.” These institutions, as Carbonnier finds, are so uniquely legal that they allow us to identify them as characteristics of law. One might sum up his approach and generalise his observation by identifying justiciability as an essential characteristic of the law. Law is a doctrine within an institutional framework. This institutional embedding ensures the justiciability of law. However, understanding law as justiciable norms and judicial practices does not in fact require law to essentially involve procedures and institutional contestation. “Law” is rather about the possibility of turning to institutional contestation, as Carbonnier understands it. In a similar vein and with regard to canon law, Ludger Müller speaks of justiciability as the possibility of relying on organised procedures to receive a verdict about what is legal and what is illegal.¹¹⁸ Following these approaches, the key characteristic of law is therefore not its enforceability in a Weberian sense, but the opportunity to turn to legal institutions to receive their decision about what is legal and what is illegal. However, the much-cited Eugen Ehrlich refused to accept this kind of approach. Ehrlich considered law to be a factual phenomenon, and not necessarily a justiciable one. He wrote, “The order of human society is based upon the fact that, in general, legal duties are being performed, not upon the fact that failure to perform gives rise to a cause of action.”¹¹⁹ In light of the reality of the law, Ehrlich might well be right: social orders largely function tolerably well without legal adjudication. Nevertheless, adjudication and other forms of institutional contestation, as I want to argue here, remain part of the concept of the law as a possibility. A norm that cannot be reified in legal procedures and comes without the possibility of being applied to a concrete case in a concrete legal setting is not a legal norm. If we follow this definition and apply it to canon law, it becomes most obvious that canon law formally identifies a number of norms as legal norms, although they are, strictly speaking, nothing of the kind. The current Code of Canon Law, for instance, contains a number of doctrinal statements which are formally posed as legal norms by inserting them into the Code, yet without giving them a justiciable quality. Sacramental law in particular contains these kinds of non-legal norms which present some fundamental propositions about the sacraments of a theological nature without carrying any legal meaning (eg canon 834 §1 CIC/1983). As these norms defy the option of institutional contestation, we may hardly understand them as legal norms. I will deal with this problem from a sociological perspective in Sect. 5.2.1. At this point in the discussion, it suffices to say that if we follow the concept of law which I rely upon, then we must note that not all norms which bear the formal appearance of legal norms possess genuine legal character.

2.1.14 State Law and Sub-state Laws

If we take law to mean a rationally structured knowledge system which offers us justiciable norms endowed with the option of institutional contestation, then the problem of panjurism, which declares all social norms to be law, is largely contained. The concept of law begins to take shape. However, Brian Tamanaha believes that this definition still needs some fleshing out. He says that it should be borne in mind that the modern concept of “law” is primarily concerned with state law.¹²⁰ Whilst non-state entities are indisputably able to generate quasi-legal social norms, the primary characteristic associated with the law in modernity is that it originates from the state. It comes as something of a surprise to find that the father of legal pluralism, Eugen Ehrlich, argues in much the same way. Ehrlich cites four reasons why the focus of attention is on the state when we speak of modern law, observing,

First its participation in lawmaking through legislation; secondly, its participation in the administration of law through the state courts and in parts through other tribunals; thirdly, its power and control over the state tribunals, by which it is enabled to give effect to its statutes; lastly, the idea that the preservation of a factual situation corresponding to the law can be effected primarily, or at least ultimately, through the state’s power of compulsion.¹²¹

Whilst the primary focus of Ehrlich’s sociology of law is on the diverse origins of the law, he also points out that the state is the predominant influence on law in modernity. However, as Ehrlich also emphasises, whilst state law accordingly occupies a position of primacy in socio-legal debates, this is certainly not the result of its exclusive status as law and more an indication of its dominant position in modern societies.

Similar considerations about the dominance of certain legal agents play a role in the current debates about the globalisation of law. Studies on the development of law as it adapts to the conditions of increased global unboundedness are currently recognising the limitations of statehood as the basis for forming global regulatory systems. The approaches acknowledge the state as the contingent source of law which has made a significant contribution to the field of modern law over the centuries, but note that the nation states are now reaching the limit of their capacity in a global order. These studies consequently document a certain ebbing away of state dominance in the field of law. Paul Schiff Berman points out, for example, that the traditional link between law and the national territoriality of states is an idea rooted in the seventeenth and eighteenth centuries. In the debates about the theory and sociology of law, this link has resulted in the close association between the concept of law and the sovereignty of the state, binding it in to the positive law of the nation states. But law and territoriality are not necessarily connected. Especially in the modern era, transnational law is increasingly demonstrating that the formation of legally relevant groups may occur based on criteria other than the territorial boundaries of nation states. It no longer seems necessary for a group to share a common geography or history in order to constitute a legal community. As a consequence, when discussing the constitutive elements of law, limiting one’s perspective to nation states and their law is not justifiable. As Schiff Berman observes, different types of groups can invoke their status as a legal community and their own law, “if communities are based not on fixed attributes like geographical proximity, shared history, or face-to-face interaction, but instead on symbolic identification and social psychology, then there is not intrinsic reason to privilege nation-state communities over other possible community identifications that people might share.”¹²² Supranational, transnational, and subnational law, such as the law of religious groups, are therefore currently gaining in importance in the debates on law in the context of globalisation, questioning the traditional dominant position of modern state law to some degree.

With respect to the concept of law, these observations support my study’s proposition that “law” is not identical with state law. As far as legal theory is concerned, there is no reason for the primacy of state law over the law of other legal groups. From a sociological viewpoint, however, we should not overlook that state law is accorded a position of primary importance due to its key social significance, even if globalisation is currently auguring a shift in this equation. Hence, state law cannot claim a monopoly of influence in the field of the law, neither theoretically nor practically, but still is, in any case, the dominant legal presence in the field of the social. This should always be borne in mind in socio-legal studies. The question arising from this finding is how it is possible to acknowledge the central role of state law sociologically without relapsing into a form of monism that is blind to non-state law. Roger Cotterrell argues against a narrow monistic understanding of law (as well as against the indefinable boundaries of law inherent in pluralist approaches) by arguing in favour of an intermediary position which acknowledges the state as the preeminent producer of law—and therefore acknowledges that the sociology of law must be particularly attentive to state law—but which is also alert to other groups as sources of law.¹²³ Nevertheless, the crux of Cotterrell’s intermediary position is not that it avoids the monistic exclusion of non-state law and indiscriminate panjurism, but that it draws its understanding of the law from the interactions between state and non-state law. Cotterrell attempts to come to an understanding of what defines the law in a sociological sense by studying the relation between state and non-state law and subjecting it to comparative examination. From an historical perspective, this approach is supported by studies which point to the common origins of different legal traditions. Eugen Ehrlich points to the history of state law to show that many state norms have their roots in social, and often religious norms. Ehrlich even presumed that “we shall have to call the part played by the state in the creation of law a very limited one.”¹²⁴ It is difficult to speculate about quantity, though. Max Weber, for instance, stressed the contribution canon law had made to the development of modern state law.¹²⁵ Whilst Harold Berman’s thesis regarding the canonical roots of western law has not gone unchallenged in the historical debates, it demonstrates plausibly that we should not overlook the church’s legal tradition in the formative history of state law in the western world.¹²⁶ It is a matter of debate whether the broad brush of Berman’s theory is really tenable. But it is convincing in connection with certain individual legal matters. For example, numerous individual studies trace the religious roots of certain institutions of state law. Political scientist Tine Stein, to mention one example, mapped out the relations between Christian anthropology and modern constitutional law, by analysing especially the religious heritage of the principle of human dignity.¹²⁷ These and other studies underline the importance of taking an intermediary approach to improving our understanding of law from a diachronic perspective, as they examine the common roots and historical links between legal systems. Adding to their insights are synchronic approaches, which examine the way in which legal systems interact in the present. We find these approaches in numerous studies that seek to understand law by comparing different legal systems. It is first and foremost scholars of the sociology of law who argue in favour of the state’s preeminent position with respect to the law in modernity and who largely approach non-state law by comparing it with state law. One such scholar is Brian Tamanaha, who advocates for comparison as a preferred method which can prove helpful in understanding plural legal phenomena by identifying similarities and differences between them. Tamanaha is forthright in his argumentation. He believes in the necessity of comparison with state law in order to clarify whether normativities of non-state provenance are actually law, “the main test we apply to determine whether the proposed definition captures what we mean by law is to measure it against our intuitions about the essential characteristics of state law, sans the state.”¹²⁸ Whilst this approach does not seem applicable to legal theories which maintain that the concept of law is not identical with state law, Tamanaha’s method is certainly applicable with regard to the sociology of law. There is much to learn about non-state law from a comparison with state law, as Klaus Röhl explains. Röhl finds, for instance, that it is only interesting to analyse the mafia, the Palestine Liberation Organization, or General Motors as so-called “states within a state” insofar as all of these organisations compete with and challenge the state and its monopoly on the law.¹²⁹ The examples Röhl cites show plausibly that, from a sociological perspective, there seems to be an obvious difference between state law and non-state legal systems. It is for this reason that Jean Carbonnier avoids speaking of “plural laws” in the first place, preferring instead to speak of infralegal phenomena¹³⁰ or “sub-law”.¹³¹ This problematic reduction in status that Carbonnier’s term implies can be avoided by making use of a distinction applied by other socio-legal scholars. They differentiate between horizontal and vertical legal pluralism, depending on whether plural legal orders exist side by side or relate to each other in hierarchical schemes of sub- and superordination.¹³² Similarly, Paul Schiff Berman speaks of the law of “subnational communities”¹³³ in relation to the law of religious communities and other non-state groups. This classification is conceptually helpful and appropriate for a sociology of canon law, too. It accommodates the central position of state law in modern societies without relapsing into legal monism, and also permits the accurate description of the various kinds of different connections between national entities such as the states and subnational groups producing non-state law such as canon law.

2.2 A Sociological Look at Canon Law

The differences between legal theory and the sociology of law outlined above must also be given due consideration as the discussion turns to canon law. As we have already noted, it is not necessary to involve the state to understand canon law as law. From a sociological viewpoint, however, much can be learned about current canon law by studying it in comparison with state law, the dominant law of modernity. However, we have to consider the consequences of doing this on the sociology of canon law. This includes asking if we can conceive of canon law either as a source, a support, or a rival to state law—three qualifications which Klaus Röhl proposes to describe the relationship between state law and non-state law.¹³⁴ There are a number of possible objections to studying canon law in comparison with state law. From an historical perspective, one might object that Roman Catholic canon law had already been established as law when modern state law emerged. Granted, arguments of seniority are of limited sociological value and historical arguments pointing out the reliance of secular law on canon law are also only of limited use in trying to comprehend the nature of law in modern society. Many historical roots of modern state law lie in religious law. Yet modern law does not depend upon a religious foundation for its validity in modern society. Nowadays, state law stands rather alone as the dominant law in society. However, it is closely connected with legal systems deriving from sub-state groups such as canon law and relates to them—at times constructively, at times in conflict. For a contemporary sociology of canon law, comparison of state law and canon law therefore promises to provide an insight into the status of canon law in our present times.

2.2.1 Sovereign Law of the Church

This comparison can only succeed, however, if we sufficiently account for the above-mentioned differences between legal theory and the sociology of law. Canonical legal theory assumes that canon law exists in its own right. Like the state, the modern church asserts a claim to autonomy, which imbues its law with authority. In consequence, the legal system of the church draws its validity from within the church itself, and is a result of the sovereignty of the church as its inherent power to govern its own affairs. The power of the church to produce its own law is also plausible from a sociological point of view. Georges Gurvitch, for example, also applies the concept of sovereignty to explain why non-state groups are legally productive. He understands the fact that groups emerge and develop the capacity to stand for themselves and assert themselves as the result of them developing sovereignty.¹³⁵ His argument rests on the phenomenon of emergence, which equips a group with abilities above and beyond the collective abilities of the group’s individual members, allowing the group as a group to stand alone and to act as a sovereign entity. One inherent outcome of the sovereignty of groups is their ability to create law. Following Gurvitch, non-state agents can therefore also lay claim to the sovereign capacity to create law. Gurvitch also addresses the open question of the effectiveness of this law. He is aware of the problem that, even though we might understand non-state law as law produced by sovereign agents, this does not explain how this law can take effect in parallel to state law, bearing in mind that modern state law tends to sideline any other law. Gurvitch concedes that this is a challenge. However, he is adamant that this does not preclude understanding non-state law such as canon law as the sovereign product of a non-state legal community. According to his theory, we may understand canon law as rooted in the sovereignty of the church. This idea resurfaces as a self-conception in canon law itself. We may find it, for instance, in ecclesiastical penal law, in which the church claims “its own inherent right” for itself, “to constrain with penal sanctions Christ’s faithful who commit offences” (canon 1311 §1 CIC/1983). This norm introduces punishment and sanctions as instruments that the church has at its own sovereign disposal to defend the public good of the church and the salvation of souls. The reference to the “nativum et proprium Ecclesiae ius” serves three functions: First, it stresses the natural foundations of ecclesiastical penal law as rooted in the sovereignty of the church. Second, it establishes an analogy between the church and the state insofar as it indirectly hints at the state as the primary institution of modernity which claims sovereign rights to sanction and punish. Third, by indirectly confronting state law with canon law and its own proper claim to sanction and punish, the norm serves to demarcate canon law from state law. We may detect similar lines of thought in other canons of the Code of Canon Law. Canon 362 CIC/1983 of ecclesiastical constitutional law attributes to the pope “the innate and independent right to appoint, send, transfer, and recall his own legates either to particular churches in various nations or regions or to states and public authorities.” Canon 1260 CIC/1983 of ecclesiastical property law claims the “innate right” of the church “to require from the Christian faithful those things which are necessary for the purposes proper to it.” Canon 1254 §1 CIC/1983 confronts the state with the ecclesiastical claim of sovereignty in property matters, by emphasising the “innate right” of the church “to acquire, retain, administer, and alienate temporal goods independently from civil power.” The norm explicitly qualifies the claim of the church to act independently and sovereignly with regard to its property in demarcation to any potentially conflicting claims by the state. In property matters, as the law underlines, the church acts independently of the state based on its own sovereign property law.

We have to note though that this claim to sovereignty in canon law does have a rather anachronistic side to it, in reality but also with regard to its theory. From the perspective of legal theory, the church can plausibly claim the sovereign roots of its law and therefore position itself in parallel to state law by claiming that its law is comparably genuine. However, the papal magisterium has tied this idea, since the nineteenth century, to the contestable claim that canon law and state law have a comparable social standing. In the nineteenth century, ecclesiastical social theory began to conceive of church and state and their legal systems as complementary agents shaping society. The papal theory described church and state as two perfect societies (“societates perfectae”) whose task it is to provide society with a secular and a spiritual order respectively. This theory was outlined succinctly by Leo XIII in the Encyclical Immortale Dei on the Christian Constitution of States. In this encyclical, Leo elevates the dualistic structure of the social order by two perfect societies, church and state, to the central principle of ecclesiastical ecclesiology and state theory. He admits that the state is an autonomous power, but argues that God in fact “has given the charge of the human race to two powers, the ecclesiastical and the civil, the one being set over divine, and the other over human, things.”¹³⁶ Both of these powers are rooted in the same source, as Leo states, namely in God’s desire to order the social with regard to its spiritual and temporal needs. This gives rise to two distinctly separate domains, the church and the state, which are nevertheless complementary domains in the organisation of all socially relevant matters. Matters spiritual, the causae spirituales and the causae spiritualibus adnexae, are the responsibility of ecclesiastical legislation, adjudication, and administration, while secular powers are responsible for settling legal matters of a worldly nature, causae temporales. Within each of their domains, church and state enjoy not only exclusive power and authority, but are equipped with all instruments of governance necessary to create and exercise their power. The reference to church and state as “societates perfectae” is based on this idea of a perfect equipping of both authorities with all of the instruments of power and control they need for their respective temporal and spiritual dominion.

2.2.2 Canon Law as Sub-state Law

The theoretical conception of the church as a perfect society has continued to shape ecclesiastical legal thought beyond the nineteenth century and is still influential today. However, it is not entirely compatible with the sociological observation that state law enjoys a predominant position in most current societies. Anyone who views the relation between church and state as a balance of power between two coequal and perfectly equipped societies will find it hard to accept the sociological verdict that canon law is the law of a sub-state group. Nonetheless, as I said, this qualification does not disregard the sovereign provenance of ecclesiastical norms. It rather acknowledges that sovereign canon law in modernity operates within a social framework largely defined by state law. Canonist Rik Torfs captured this status of the church in a rhetorical question, asking what social role the church and other religious groups seek to fulfil in the present day. There are two alternatives at hand, as Torfs suggests. The church might understand itself as part of civil society, albeit, as all religions, under the special protection of religious freedom as granted by the state. Alternatively, it might go on to understand itself as a society separate from civil society and as an autonomous power and even as a counterforce to civil society.¹³⁷ It is fairly evident which model Torfs finds realistic and convincing for a modern church. The idea that church and state are two coequal and complementary shapers of society is simply not reflected in today’s reality. And it no longer enjoys widespread acceptance. Since the nineteenth century, society and politics has confronted Neo-Scholastic legal doctrine with growing opposition. Today, those faint echoes of the Kulturkampf, which aim at restoring the power of the Catholic Church in the social sphere, seem rather absurd, at least in the overwhelming majority of countries. In Europe, since the nineteenth century, ever fewer citizens have been willing to accept ecclesiastical attempts to subjugate society under ecclesiastical authority.¹³⁸ Attempts to stage the church as a social counterforce to the state already failed in the nineteenth century, and became fully obsolete in the twentieth century. The church therefore had and has to surrender its pretensions to quasi-statehood. It had to—and must still—learn to understand itself as part of civil society. This development had and has consequences for canon law. As the law of a sub-state agent in civil society, canon law can attain its social effectiveness in present-day society to no small degree only by constructively referencing state law. This becomes clear when studying the constitutional law on state and church relations of many western nations. The relation between church and state as set out in many secular constitutional systems does not reflect a balance between two coequal and independent authorities. On the contrary, the power of the church to act independently in plural societies is based to no small degree on constitutional commitments as granted by the states.¹³⁹ Otto von Gierke observed that the power of the church to shape society was already becoming increasingly dependent on the institutional guarantees provided by state law as early as the turn of the twentieth century. Gierke found that the state, by the end of the nineteenth century, had come to claim supreme sovereign power above all other powers and had come to understand its law as supreme to all other legal orders. However, as the supreme source of law, the state also started to allow sub-state groups to benefit from state law whenever it found these groups served as public institutions.¹⁴⁰ In Germany, for example, the state grants religious communities under constitutional law the freedom to acquire the status of a public corporation (see article 140 of the German Basic Law in conjunction with article 137 section 5 of the Weimar Constitution). This status brings with it a number of legal benefits—such as the right to levy taxes (see article 140 of the German Basic Law in conjunction with article 137 section 6 of the Weimar Constitution). In addition, comprehensive institutional guarantees in the German legal system accord religious communities considerable freedom to participate in and contribute to society. Religious education in public schools, higher education in theological faculties at state universities, and pastoral care in the military or other state institutions are examples of the churches’ involvement in society. Such contributions are certainly only possible because the state allows the churches and other religious groups to operate in these fields. Yet despite the state and its law enabling many of the activities undertaken by the religions in society today, we should also note that common state and church institutions such as religious education in German public schools are also partly based on religious law. Thus, they inter alia rely on canon law and hence on sovereign ecclesiastical legislation. Yet without the facilitation of the state these institutions would be inconceivable in the first place, both legally and practically. This finding does not diminish the authority of the church as sovereign in the generation of its law. But one has to observe that its institutional power to shape and influence modern society transpires in many ways to be an authority granted “on loan” by the states.¹⁴¹ This imbalance of power is not always at the forefront of our minds. Jean Carbonnier calls it one of the great illusions created by legal pluralism that speaking of “legal pluralism” actually suggests cooperation and conflict between equal legal systems, whereas, as Carbonnier sees it, it is in fact rather a meeting of one true legal system and some rather poor imitation of it.¹⁴² One might object to his rather stark polemic, but in many ways he describes the modern imbalance of power between state and sub-state law such as canon law with some accuracy.

2.2.3 Decreasing Social Significance

I have examined the difference between the law of the state and the law of non-state groups so far from the perspective of the social significance of the law. However, this difference also has an influence on sub-state law itself. This might become evident if we take the example of canon law. In this case, it is clear that canon law, despite the church self-confidently depicting itself as a “perfect society,” was already losing much of its former social influence at the dawn of the twentieth century. The reduced social significance of canon law, which has been unfolding ever since, is reflected today in the limited extent of the church’s legal reach. Simon Hecke explains how this development came about. He analyses the processes in which canon law changed from being an influential legal system in its own right with a major impact on society (Hecke speaks of former canon law as “Gesellschaftsrecht”) to becoming a purely community-based “organisation law” (“Organisationsrecht”) providing the church with a regulatory framework.¹⁴³ The processes of divergence between church and state in the modern era, which saw canon law sharpen its profile as the legal order of a sovereign church, also brought about the decline of its broader social relevance. Hecke describes this change in accordance with Luhmann as processes of functional social differentiation, pushing canon law out of the centre of society and confining it to the status of a law with relevance merely within the church. Hecke suggests that this development is unparalleled. He believes canon law to be the only example of a legal order which underwent this fundamental change from a broad Gesellschaftsrecht to a rather narrow Organisationsrecht.¹⁴⁴

Canonical legal theory has now caught up with this change in the status of canon law. The Second Vatican Council, by attuning the definition of the church to speak more of “communio” than of “societas,” not only liberated ecclesiology from ecclesiastical quasi-state ambitions, but also freed the legal foundations of the church from the grip of quasi-state approaches to canon law. In place of a quasi-state-like canon law which threatened to neglect the theological core of canon law, there appeared new theoretical approaches which saw canon law as emanating from the church as communio as the community of the faithful. Nowadays, legal theory is challenged with fleshing out the consequences of this ecclesiological shift. Its task is to continue to refine the theory of canon law to understand it more in terms of a law of the ecclesiastical community,¹⁴⁵ or as an “organisation law” in the Heckean sense. The Code of Canon Law of 1983 went some way towards achieving this goal, as the example of ecclesiastical penal law might help to illustrate. Whilst at the dawn of the twentieth century the church still conceived of itself as a quasi-state, generally criminalising all sorts of offences against Catholic morals, today’s church makes do with a slimmed-down penal law. Compared to the old Code of 1917, the 1983 Code has a pro-liberal agenda and curbs some of the old regulatory frenzy to allow Catholics more freedom.¹⁴⁶ The reduced penal law now primarily focuses on preventing church members from engaging in behaviour which might endanger their salvation or damage the church. The significant streamlining of criminal offences in the current penal law of the Code reflects this reduced view. When revising the Code before 1983, the legislator followed the recommendation to dispense with those penal norms where non-legal means proved sufficient to protect ecclesiastical interests.¹⁴⁷ Whilst the old Code of Canon Law of 1917 still contained 101 canons with penal norms (see canons 2314–2414 CIC/1917), the current Code only contains 36 canons with penal prescripts (see canons 1364–1399 CIC/1983). The current law no longer includes the offences of desecrating a grave (see canon 2328–2329 CIC/1917), verbal abuse of a church dignitary (see canon 2344 CIC/1917), or attempted suicide (see canon 2350 §2 CIC/1917). Whilst all of these acts continue to be regarded as sinful according to Catholic morals, they have lost their status as crimes. This pro-liberal move coincides with Simon Hecke’s sociological observation about canon law having to reduce its status and becoming more of an internal organisation law. And it answers to the theoretical need for a foundation of canon law which grounds the law less on ecclesiastical quasi-state ambitions and more on theological requirements. The church as a community of faith requires a law which acknowledges the freedom which is essential for the faith. The ecclesiastical legislator must therefore downsize canon law to a point at which it limits this freedom to the smallest possible degree and encourages religious freedom to the greatest possible degree. It is a matter of debate, however, whether this kind of canon law continues to be “law.” A small number of canonists such as Peter Huizing are sceptical about whether the genuinely community-based character of canon law is adequately represented by understanding canon law as “law.” For Huizing, speaking of “law” in the modern era always has a reference to state law. Huizing himself therefore suggests changing the wording and, instead of speaking of “canon law,” suggests speaking of the “order of the church.”¹⁴⁸ However, for a number of reasons his initiative to move canon law outside of “law” has met with a rather lukewarm response from most scholars of canon law.¹⁴⁹ Jan Vries, for example, pointed out that understanding canon law as law does not inhibit the personal and free quality of the relationship between God and the faithful and among the faithful as a community,¹⁵⁰ concerns which Huizing had raised. Furthermore, as Vries found, calling canon law “church order” does not help to clarify what actually constitutes canon law. What speaks against referring to canon law as “law” is in fact that this wording in modernity inevitably evokes an analogy with the state, thereby concealing more and revealing less about what it is precisely that constitutes canon law. What does speak in favour of calling canon law “law” is not merely that “canon law” is an established term, but that this term actually denotes—in church as much as elsewhere—a doctrinal system of norms which derive from and are connected with institutions which guarantee their justiciability. Whilst state law and canon law pursue distinctly different aims, they are both guided by their purpose of establishing order, and are thus fairly comparable in some respects. As legal systems provide legal communities with structure, they share a number of similarities, as Ladislas Orsy observes,

In all legal systems there is one common purpose: to bring balance into the life and operations of a human community. Now the church is a human community; therefore, to use the wisdom accumulated in legal tradition is obviously fitting for the church, although its use must be always selective and have due respect for the specific nature of a religious community.¹⁵¹

As I share Orsy’s proposition, my study continues to speak of “canon law.” However, it does this whilst acknowledging that Huizing is justified when he says that speaking of “law” in modernity casts a problematic quasi-state shadow over the church and its law.

2.2.4 State Law as a Frame of Reference

The above discussion shows that an intermediate theory which accounts for the central position of state law in modern societies has a role to play in the development of a sociology of canon law, as it helps to grasp the reality of canon law. This realisation led canonist John Huels to make the understandable statement, “canon law cannot be interpreted well without reference to a society’s secular legal system or systems, whether formal or informal”.¹⁵² However much it is the task of canon law theory to locate the source of canon law inside the church itself, it is not currently possible to speak of canon law from a sociological perspective without considering it in terms of its relationship with other legal systems, with state law being foremost among them. One may accept this fact or regret it. However, one cannot and should not ignore it. To ignore the interrelationship between canon law and other legal systems would mean gravely misjudging its reality. One aspect of the reality of canon law in our present times is, among other things, that we tend to view it through the prism of state law. Not only have secular members of society chosen this rather comparative method of understanding religious law by comparing it with state law; Catholics, too, rely on this hermeneutical approach. Nowadays, the vast majority of citizens, including Catholic Christians, primarily associate “law” with state law. The legal culture of their own civil society creates the primary referential parameter for their experience of law and their expectations with regard to law. And they draw their knowledge of the law primarily from state law. My self-observation supports this thesis. As a canonist working with canon law on a daily basis, my first reaction when I hear the term “law” is intuitively to think of state law. I do not discern what canon law is or should be by examining canon law purely, but by comparing it with state law. So my familiarity with and knowledge of canon law are clearly epistemologically dependent: they are based on my more or less reliable pre-existing knowledge of state law. This prior knowledge also influences my attitude towards canon law and, as I want to suggest, most Catholics’ attitudes towards it, too. John Huels already noted back in the 1980s, “The attitudes of people toward law and their experiences of it in society affect the way they view and approach canon law”.¹⁵³ This is no different today. Individuals socialised in democratic states tend to judge ecclesiastical legislation based on their knowledge of democratic legislation. They evaluate ecclesiastical adjudication the light of state adjudication. And they assess the functioning of ecclesiastical administration in comparison to the modern bureaucratic executive.

2.2.5 Simultaneous Non-synchronicity

Unsurprisingly, this comparative perspective is a source of conflict. This is because—in contrast to what we are familiar with in secular states and democratic orders—canon law does not come into being through democratic processes. And it proves to be less liberal than the law of modern constitutional states. Instead, the church still relies on an absolutist concept of governance. This collides with the democratic socialisation of many church members and impacts the way many Catholics perceive canon law. Historian Brian Tierney sees the roots of this conflict in history. It is the consequence, he believes, of an asynchronous modern development which has separated church members and in particular the laity from church leadership. Tierney senses an irony in the development that “vast Catholic populations became irrevocably committed to political democracy at a time when the Roman see had committed itself to the improbable task of governing a world-wide Church through the institutional apparatus of a petty baroque despotism.”¹⁵⁴ Following Tierney, one has to understand canon law as the legal order expressing and securing the ecclesiastical authorities’ absolutist ambitions. From the perspective of culture theory, this observation begs the question how we may conceive of this most peculiar coexistence of modern state law and premodern or rather early modern canon law. We have to understand how it is possible for canon law to feed elements of late medieval or early modern governance theory into current contexts. Non-synchronicity is a helpful concept to describe this phenomenon. To classify phenomena of this kind, the social sciences frequently use the theory of nonsynchronism, following the idea of the “non-simultaneity of the simultaneous,” which Ernst Bloch formulated in the 1930s in order to explain the temporal coexistence of contrasting interpretations of the present in a society. Bloch stated, “Not all people exist in the same Now. They do so only externally, through the fact that they can be seen today. But they are thereby not yet living at the same time with the others. They rather carry an earlier element with them; this interferes.”¹⁵⁵ In this light, we may also come to understand state law and canon law as existing at the same time. However, both laws deal with the same time in different ways. Following Bloch, one may find that canon law still includes many characteristics of earlier times. It brings a good many elements of premodern and early modern law with it into our present times. Notwithstanding these specific observations, we have to note that all law essentially contains asynchronous elements. This phenomenon is the focus of William Ogburn’s theory of cultural lag, which describes the unavoidable cultural time delay in the development of law.¹⁵⁶ Law is always somewhat late, compared to the developments of society and its social and cultural evolution.¹⁵⁷ Legal norms are always a slightly delayed reflection of social norms. Consequently, one may detect phase shifts in the developments of society and law, as early socio-legal scholars such as Eugen Ehrlich already observed.¹⁵⁸ Émile Durkheim noted in a similar vein that situations occur in which “law no longer corresponds to the state of existing society”.¹⁵⁹ Roscoe Pound likewise detected an “inevitable difference in rate of progress between law and public opinion.”¹⁶⁰ After all, as Pound added, “law has always been dominated by ideas of the past long after they have ceased to be vital in other departments of learning.”¹⁶¹ This rather backwards-facing basic structure of law, which confronts each and every law with the allegation of being stagnant and conservative, as Klaus Röhl observes,¹⁶² essentially applies to canon law, too. But it takes on an added significance in canon law, because canon law is not simply at one remove from the development of social norms like all law, but also lags behind the achievements of modern law. This distance arises because the church intentionally adopts and sometimes must adopt a critical stance towards contemporary cultures in order to maintain its profile.¹⁶³ The church is a part of social culture, yet it also understands itself as countercultural. Distancing itself from society’s mainstream culture, it adopts a position of conscious detachment. However, by doing so it increases the cultural deficits of canon law in relation to the cultural developments of society in general. Some of Catholic canon law is therefore—to borrow Bloch’s phrase—located in a different “Now” to state law.

2.2.6 Dissonant Experiences of Law

However, because the Now of state law is what shapes the way church members experience the present, they tend to view canon law as an anachronistic legal order. Yet the solution to this problem does not lie in attacking the fact that their understanding of law is rooted in the modern state. First of all, it is sociologically unrealistic to expect church members to change their view of the law. Second, there is no theological basis or justification for expecting this to happen. This is because the influence of state law on the church members is not an accident of fate, but a perfectly normal development, as conciliar ecclesiology reminds us. This becomes clear when studying the teaching of the Second Vatican Council about the church. The Pastoral Constitution Gaudium et spes notes, “The joys and the hopes, the griefs and the anxieties of the men of this age … these are the joys and hopes, the griefs and anxieties of the followers of Christ.”¹⁶⁴ This statement is not only an expression of solidarity between Christians and the people of today—and hence with modern individuals living in plural societies and secular states—, but is also the acknowledgement that Christians are themselves members of plural societies and have therefore been socialised in their societies’ cultures, including contemporary legal cultures. Pluralist societies are not therefore adversarial to the church and to its mission, but are adversarial to the space in which ecclesiastical life unfolds. This is not the result of an ecclesiastical “self-secularisation” (a catchword that has found increased usage in conservative circles within the church since Benedict XVI called for the church’s “detachment from the world” in his controversial 2011 Freiburg speech),¹⁶⁵ but an acknowledgement that church and “world” are indivisible, both sociologically and theologically. It is therefore no accident that secular legal cultures shape the way in which Catholics understand the law. On the contrary, it is the natural way in which contemporary Catholics reflect their experiences in church in light of their other social experiences in the “world.” When modern Catholics confront canon law with state law, this is neither provocation nor an error of category, but the natural consequence of understanding church as an entity which has its place in the “world” and among other agents influencing modern cultures.¹⁶⁶ However, sociologically and with respect to canon law, major tensions arise from this confrontation, particularly from many church members’ disappointed expectations with respect to canon law. For Catholics socialised in democratic political and secular legal cultures, contact with canon law may be a sobering experience. Georg Essen describes this problem as follows,

The fact that the modern world is the primary horizon of reference to Catholic Christians supports the finding of the sociology of law that a culture of transparency as called for by the plural public and a liberal culture of the law as is common in liberal democratic orders are formative for the liberal understanding of human beings to a degree that they cannot simply ‘wipe it off’ or relinquish it when they enter the inner realm of the church.¹⁶⁷

Current canon law widely fails to fulfil many church members’ expectations of law. Whilst state law grants freedom of speech, canon law restricts freedom of speech (see canon 212 §3 CIC/1983). Whilst state law grants freedom of science, canon law restricts freedom of science (see canon 218 CIC/1983). Whilst state law grants equality of women and men, canon law excludes women from ordination (see canon 1024 CIC/1983) and consequently from obtaining ecclesiastical offices endowed with the power to govern the church (see canon 274 §1 CIC/1983).

However, these divergent expectations are only one side of the story. In church, they meet with a dynamic which aggravates the problem. This is because canon law also confronts the church members with an additional expectation, namely with the expectation not only to abide by the law, as is the expectation of secular law, but also with the expectation to be obedient to church authorities and to accept the law as a consequence of this obedience. Hence, canon law not only expects the church members’ compliance but expects them to embrace the law, including disappointing laws, as a result of their duty “to follow with Christian obedience those things which the sacred pastors, inasmuch as they represent Christ, declare as teachers of the faith or establish as rulers of the Church” (canon 212 §1 CIC/1983). Hence, Catholics are continuously called upon and expected to juggle the cognitive dissonances that arise out of colliding expectations deriving from state law and canon law. In consequence, being a Catholic nowadays means, to no small extent, experiencing and enduring cognitive dissonances. This reference to Leon Festinger’s term “cognitive dissonance”¹⁶⁸ makes clear the socio-psychological predicament arising from the official church’s expectations of Catholics who have been socialised in democratic societies. This predicament also results in a problem of effectiveness for canon law, an issue that I will discuss in Sect. 6.2.