To explain why law is valid in a legal sense, proponents of positivism need only point to the legality of the law. Norms become legal norms if a competent authority with legislative power promulgates them, and they remain legal norms if no competent authority derogates them and as long as they prove to be compatible with higher ranking law.Footnote 1 I will devote this section to a close examination of the legal validity of law, and in particular of canon law. However, in discussing the legitimacy of law, proponents of prepositive legal theories point out that legality is a first but not a conclusive step towards discussing the validity of law. Law may never fully align with justice, yet one may argue that justice is its goal. For the validity of law it is therefore also essential that law finds recognition in a legal community because the community members find it acceptable as a more or less just order. I will discuss this connection between law and its legitimacy in the fifth section of this study. In addition, sociology also posits that the validity of law is indivisible from its facticity. Any debate about the validity of law must also include the factual validity of law as the actual effect that law has in a legal community. The issues are intertwined. The legitimacy of the law has an influence on the factual validity of the law, insofar as the actual effectiveness of the law depends in part on the legal subjects’ acknowledgment of the law. Whether the de facto validity of the law also has an effect on legal validity is open to debate. With these connections in mind, Manfred Rehbinder describes “living law” as “valid law which is effective. Normativity without facticity is dead law …, and facticity opposed to normativity is injustice.”Footnote 2 Hence, there are three separate levels of validity, which are set out below. I will talk about mere legal validity in this, the fourth section. I will then address validity as legitimacy in the fifth section, and effectiveness of the law as its factual validity in the sixth section of my study.

4.1 Law Born of Power, Power Born of Law

Modern law is positive law. Defining law in this relatively strict way is a response to the complexity of modern societies.Footnote 3 Instead of looking at the legal community’s full gamut of normative beliefs, modern society restricts “law” to norms that result from a sovereign act of legislation or adjudication. Niklas Luhmann expresses this in a tautology that is often cited as a way of explaining the meaning of legal positivity, “Law is what law deems to be law.”Footnote 4 Or, to rephrase Luhmann’s sentence, law is what the authorities empowered by law declare law to be, in the manner provided by the law for doing so. Elsewhere, Luhmann also states, “Law is called positive when it is established and when its validity is based on decision.”Footnote 5 Whenever modern positive law is concerned, the focus of attention is on those authorities empowered to create law. In civil law traditions the focus of attention is mainly on legislation and the legislative procedures; in common law traditions the focus is also on adjudication and the courts which are involved in developing the law according to the principle of precedent. Understanding law as positive law consequently means focusing on the agents with the authority to make law, and examining the processes in which law comes into being.

The question of who is competent to create law shifts the focus towards power, or the ability to use the law to influence the expectations and behaviour of those who are subject to it. Power plays a dual role with respect to the law. The sociology of law, insofar as it examines not only the influence of social realities on law, but also the influence of law on the social realities of groups such as communities or societies, conceives of power in a twofold sense: as the generation of power through the law, and as the generation of law through power.Footnote 6 The connection between law and power is thus reflected in the power of law because law controls social realities. It is also reflected in the power of the political agents who influence and develop the law. We might call to mind Jean Carbonnier’s differentiation between the primary and secondary manifestations of law: form and content. Carbonnier sees the primary manifestations of law, such as statute law, judicial verdicts, and the hand signals of traffic police in particular as being closely tied to power and as phenomena of power.Footnote 7 At the same time, the secondary manifestations of law generated by primary law—such as the rules of the law, the conviction, or the road users stopping at the traffic signals—have a powerful effect on social reality. Daniel Witte and Christian Striebel defined the duality of the power issue with regard to the law to the effect “that the validity of eventually contingent positive law necessarily (also) points at the underlying power structures and that its enforcement per definition requires power”Footnote 8. However, it should also be borne in mind “that social balances of power do not merely condense into legal structures accidentally, but do so rather systematically and totally.”Footnote 9 Similarly, Roger Cotterrell stated, “law can be seen as both the expression of power relations and an important mechanism for formalising and regularising such relations.”Footnote 10 Both aspects are closely interwoven because law not only generates and legitimises power relations, but in turn derives its own power from them,

It protects and legitimises power, for example by guaranteeing economic power through the development of concepts of property and maintenance of rules to protect property. Further, it derives its own power partly from the political power which it expresses—whether of a permanent power elite or the result of a struggle between power centres—and partly from the benefits which regularisation and formalisation of power, in themselves, are seen to offer.Footnote 11

Hence, contrary to what much scholarly literature states, law not only serves to control and constrain power; and contrary to the findings of critical legal studies, law is not exclusively an instrument for exercising power. Instead, as Cotterrell notes, “law controls and expresses power at the same time, as two sides of the same process.”Footnote 12 This duality prompts Thomas Raiser to speak of a dialectical relationship between law and power.Footnote 13 In a similar vein, Pierre Bourdieu places law in a “juridical field”Footnote 14 which arises out of the social practice of law. This field is defined by “specific power relations”, which provide it and its inherent conflicts of authority with structure and order. Bourdieu focuses first and foremost on the state, which he understands as the primary power to use both physical and also symbolic power to construct social reality, to create groups, to differentiate groups from each other, and to establish institutions.Footnote 15 In modernity, this power and the state enjoy a close, almost—albeit only almost—exclusive relationship. However, the power of the state, as Thomas Raiser points out, takes on different forms in the various fields of law. While criminal law is concerned with the exercise of the penal power of states, constitutional law and administrative law regulate the power which states exercise over their citizens in order to ensure a convivial social order for their citizens to live in. One field which is more problematic regarding power, as Raiser points out, is civil law. This field was originally thought to be largely free of state control—at the core of civil law lies the idea of the contract, and thus the idea of private legal relationships between free and equal citizens organised largely without the intervention of states.Footnote 16 However, civil law has increasingly fallen under the influence of the state as well. We may observe this when studying labour law, commercial law, and corporate law. Here, states are encroaching into private autonomy and restricting civil freedom of contract to a noticeable degree. This indicates that the states are advancing into areas of law in which state influence has hitherto been largely limited. However, it also indicates that the states possess differentiated degrees of power in the various legal fields, thus revealing at the same time that the states are not the only origin of law, even in modern times. In civil law arrangements, for example, other agents besides the state are legally powerful, such as contracting partners. And we cannot conceive of state and church law without the contribution of the churches and religious communities. Hence, legal power is also in the hands of these non-state agents. They rely on the power of the law to shape social reality through legal practice. With reference to the church, where canon law determines ecclesiastical reality to a great degree, it is necessary to discuss the power of canon law and the power of the ecclesiastical authorities which create and shape canon law. It is rather apparent, from a socio-legal perspective, that canon law confers power by granting certain agents the power to organise the church and its law. Most interesting, however, is the conspicuous reticence in church to interpret the law through the prism of “power.” One might even speak of an obvious reluctance to openly discuss the issue of power. Instead, ecclesiastical authorities frequently discuss “power” in the umbra of other concepts, cloaked for example in the terminology of “service.” We may find one example for this in Francis’s address at the conclusion of the III General Assembly of the Extraordinary Synod of Bishops in 2014, when he pointed out that it is the primary task of the pope “to remind everyone that authority in the Church is a service”Footnote 17. Equating “power” and “authority” with “service” in this way might be theologically plausible. And yet it leaves a bad aftertaste as it is an obvious attempt to cover up the issue of power. From a sociological perspective, the occlusion of factual power by dressing it as “service” leaves the impression that this strategy is less about emphasising “service” and more about hiding “power.” This “theologising” or “spiritualising” of power calls to mind Werner Böckenförde’s observation that canon law is particularly powerful when it is concealed, as the law and ecclesiastical structures based on the law are immune to being challenged by reform when the law is well hidden. Böckenförde staunchly criticised this strategy of trivialising structural issues in order to preclude structural reforms.Footnote 18 In a similar vein, those who seek to “theologise away” power structures make them harder for church members to identify, and make it increasingly difficult to criticise the structural asymmetries of power. After all, as the papal equation suggests, if power is “service,” then those with more power are rendering greater service to the church. This is a questionable equation, nevertheless one which makes it difficult for the church members to criticise the power of the ecclesiastical authorities. At the same time, as we will see in in Sect. 5.2.8, by hiding power and thereby preventing it from being identified and questioned, the church creates a major problem of legitimacy that also affects the legitimacy of canon law.

4.2 Characteristics of Positive Law

The fact that contemporary law is positive law points to two distinct characteristics of the law, which Jürgen Habermas describes as follows, “the positivity of law means that a consciously enacted framework of norms gives rise to an artificial layer of social reality that exists only so long as it is not repealed, since each of its individual components can be changed or rendered null and void.”Footnote 19 On the one hand, positivising law means producing legal norms and thereby creating a social reality. The positivity of law therefore affects the validity and the facticity of law. As a consciously built normative structure, however, positive law is only one layer of social normativity. This layer consists of those norms created in positivising acts of norm production, such as legislation or adjudication. One has to note though, that normativities that do not fulfil this criterion of positivity are frequently no less influential for society. Customary and conventional norms, for instance, are powerful norms with a major influence on the social, even though they are not what modernity calls “law.” On the other hand, Habermas emphasises that understanding law as positive norms points at the changeability of law. Habermas observes, “In light of this aspect of changeability, the validity of positive law appears as the sheer expression of a will that, in the face of the ever-present possibility of repeal, grants specific norms continuance until further notice.”Footnote 20 Statute law, for instance, is based on the legislator’s will. Consequently, it is a decision and as such it is changeable. Niklas Luhmann considers this to be a key characteristic of positive law, too. Indeed, one way we experience the law is to understand it as the result of decisions that can be revised, according to Luhmann, who observes, “Law is only positive when its decidability and changeability becomes a permanent presence and may be tolerated as such.”Footnote 21 These two aspects—the restriction of the contemporary concept of law to the legally positive and the fact that law as the result of decision is changeable—are equally important for the sociology of canon law. If canon law wishes to lay claim to being modern law, then as characteristics of positive law, both of these aspects must also apply to the law of the church.

4.2.1 Law as the Result of Decision

By understanding positive law as norms born out of decision, sociology characterises the law as a choice between several possibilities, as Luhmann notes, “It is part of positivity to consider that the law which is valid ‘in any specific context’ is a selection made from a variety of other options and that it is valid based on this selection.”Footnote 22 Creating positive law is therefore a process of selection which takes certain norms from a group of norms and attributes them with the force of law. This also applies to canon law. Ecclesiastical legal norms are the result of legislative decisions—and are therefore simultaneously decisions against any alternative regulatory choices. And judicial and executive decisions as their interpretations are decisions against alternative interpretations of the norms. However, as some canonists have pointed out, it is a matter of debate whether the ecclesiastical concept of “law” can truly be limited to positive law as legal norms which result from decisions. This doubt arises from the close connection between canon law and prepositive norms of so-called “divine law.” Some voices consequently argue that “canon law” must also include prepositive norms.Footnote 23 After all, the church teaches that the matter of canon law is divided into two parts, namely purely human law (“ius mere ecclesiasticum”) and divine law (“ius divinum”). It is uncontroversial that purely human canon law, which has its basis in human decision, is positive law. More problematic is the classification of ius divinum, which denotes norms that are based on the divine will as expressed in revelation (“ius divinum positivum”) and in nature (“ius divinum naturale”). Therefore we may ask if the resultant “law of revelation” and “natural law” are actually part of positive canon law. This is undoubtedly the case for those norms derived from the divine will which the ecclesiastical legislator formally put into force as law. The norms of the Code of Canon Law that draw on divine law (see, for instance, canons 113 §1, 129 §1, 145 §1, 207 §1, 375 §1, 748 §1, 1008, 1249 CIC/1983) became positive canon law when the pope promulgated the Code of Canon Law, in the same way as those norms of the Code of purely human origin. However, canon law theory also speaks of “divine law” when referring to prepositive norms of a divine origin which have not—yet—been promulgated to become positive canon law. In a broader sense, therefore, “law” in church refers not only to positive law but also to its prepositive validity sources. Some canonists even go a step further, assuming that this prepositive divine law may also penetrate directly into the positive ecclesiastical legal order. Representatives of the so-called canon law School of Navarre, for example, consider the prepositive divine will to be effective “law” and, consequently, emphasise that the ius divinum is valid as law for ecclesiastical legal subjects, even if an act of human decision has not taken place. Javier Hervada and Pedro Lombardía argue that a norm recognised as an expression of divine law by the magisterium or the faithful’s sense of faith has immediate juridical effects in church without a preceding act of promulgation.Footnote 24 A similar position is held by the so-called Munich School of canonists. Winfried Aymans and Klaus Mörsdorf’s famous canon law textbook states in this respect, “All of divine law is directly applicable canon law even when it is not embedded in an ecclesiastical statute.”Footnote 25 However, one may ask whether we may truly regard an ecclesiastical norm as law without an act of human decision. Surprisingly, even sociologist Simon Hecke seems inclined to agree with this view, insofar as Hecke concedes that limiting the definition of “law” to positive law might represent an unacceptable act of self-secularisation for the church.Footnote 26 Yet, as I want to argue, there is also good reason to view this critically. “Law,” as stated above, in its modern sense, is always based on decision, and, from a sociological point of view, there is no possible alternative. And this restriction of what we understand as “law” in a modern sense, as I want to argue, does not pose a significant problem for canon law. Besides sociological reasons, there are even good theological reasons to share this view, since the validity theory of canon law understands the law of the church as an expression of the divine will in human history. In this way, we may understand canon law, in line with the Chalcedonensical paradigm, as having an incarnational structure, as I already discussed in Sect. 3.1.4. Hence, the divine will must “incarnate” itself, in order to become “law.” It must take the form of human legal norms and become part of positive canon law in order to be regarded as “law” in the strict sense of the term. As such, prepositive norms of a divine origin go through processes of human decision making, in which the legislator turns them into legal norms and promulgates them as such. Instead of speaking of “divine law” with regard to all norms deriving from the divine will, positive and prepositive norms, it would therefore make better sense for canon law theory to adopt a more granular semantics that makes a clear conceptual distinction between prepositive divine norms and positive law. Since the concept of law in contemporary legal systems inevitably refers to positive law, it makes sense to limit the use of the term “law” to positivised norms. “Divine law” would then exclusively denote the positive legal norms that can be traced back to the divine will. We may discuss elsewhere whether canon law can live with this break with its semantic tradition—after all, “ius divinum” traditionally includes prepositive norms. But I have come to find that a terminological readjustment of this kind helps to make a clear distinction between prepositive and positive norms. Jürgen Habermas explains best why it is indeed necessary to draw this line. He is critical of the “duplication of the concept of law,” which is still sometimes apparent in contemporary law, as a “burden of debt from traditional natural law.” For Habermas, this blurred boundary between prepositive and positive norms is a burden for the reason that it “is sociologically implausible and has normatively awkward consequences”Footnote 27. The lack of differentiation between positive and prepositive norms, he argues, is not only conceptually imprecise, but also contentually misguided, since it blends together law and morality in a way that is intolerable for modern thought.

4.2.2 Legal and Moral Norms

Studying canon 1399 CIC/1983 reveals the problems this blend of law and morality might give rise to for canon law. This last canon framing the Code’s ecclesiastical penal law sees the legislator cross the border between law and morality. The canon contains a threat of punishment that allows ecclesiastical penal law to respond to “the external violation of divine or canon law” by imposing punishments even when punishment has not been prescribed by ecclesiastical penal norms, in cases in which “the special gravity of the violation requires it and necessity demands that scandals be prevented or repaired.” Hence the ecclesiastical legislator makes it possible to punish an act that breaks ecclesiastical law, but which should in fact not be punishable as there is no punishment attached to the prohibition. The legislator likewise permits the prosecution of an act that the authorities understand to be the transgression of a divine norm—and thus a sin—even when there is not only no relevant penal norm, but also when the divine norm itself has no positive expression in ecclesiastical law and is therefore not part of positive canon law. The prescription of canon 1399 CIC/1983 most evidently breaks the legal principle of “no penalty without a law” (“nulla poena sine lege”), which states that a punishment is only permissible on the basis of a penal norm that was already in existence when the breach of law occurred. Hence, by making the breach of a moral norm the basis of a legal punishment, canon 1399 CIC/1983 breaches the borders of modern law. One may be highly critical of this step, as canon law disregards the autonomy of morals by appropriating morality in this way. It also damages the law by enabling the arbitrary imposition of punishments, and by overriding equality and legal certainty as basic principles of legal justice. However, a law that is open to arbitrariness is not simply a bad law, it also undermines its character as law. Taking a sociological perspective, Roger Cotterrell points out that arbitrariness in law constitutes an attack on the rule of generality as constitutive of law.Footnote 28 This is because arbitrariness compromises the general and abstract effect of the law. Cotterrell inter alia refers to indeterminate legal concepts and general clauses in laws that serve as gateways for arbitrary decisions as examples of arbitrary elements in positive law.Footnote 29 A law that works with indeterminate legal concepts and general clauses opens the way for decisionism in the application of the law. Law, then, ceases to be “law” in the strictest sense and becomes moral tyranny or mere power politics. The fact that the current Code of Canon Law, unlike the former 1917 Code of Canon Law, contains few definitions and often relies on general clauses and indeterminate legal terms indicates once again that it is open to interventions of a moral or political nature. Ecclesiastical legal norms, for example, often refer to a “just cause”Footnote 30 as a reason for action or inaction, which gives ecclesiastical authorities considerable leeway in their decision making. Criminal law often makes reference to “just punishment”,Footnote 31 thereby threatening unspecified and unquantified punishments for certain acts. This presents problems with regard to certainty as a key principle of penal law. Moreover, from a sociological point of view, this lack of clear boundaries between law and morality may inflict serious damage on the law, because arbitrariness in law and in particular in penal law casts doubt on the character of law as law. It is therefore imperative for all modern legal systems including canon law to differentiate between positive and prepositive norms, both terminologically and with regard to their content. This principle of making an essential distinction does not seek to diminish either the obligatory nature of moral norms or the significance of morality for law. It is undisputed that prepositive norms expressing a divine will exert a binding force on church members, but they do so in a different way to legal norms. Moral norms are no less binding in church than legal norms, but they are binding in a different, namely moral sense. It is also undisputed that prepositive norms which express a divine will, once they are recognised as such, can have legal implications and therefore require the ecclesiastical legislator to include them in positive law. Doing so means the legislator makes these moral norms legally binding by turning them into legal norms. And even subsequently, morality retains its significance for the law. This becomes apparent with respect to the legitimacy of law. Jürgen Habermas notes, “In virtue of the legitimacy components of legal validity, positive law has a reference to morality inscribed within it.”Footnote 32 I will discuss this reference of the law to morality in detail in the fifth section of my study. Hence, the relation between law and morality is maintained, albeit without blurring the boundaries between moral and legal norms. Law must safeguard the autonomy of morality—and do this even when the same matter is in dispute. This is essential because even in cases where law and morality both relate to the same matter, they do so differently, as Habermas points out,

To be sure, moral and legal questions refer to the same problems: how interpersonal relationships can be legitimately ordered and actions coordinated with one another through justified norms, how action conflicts can be consensually resolved against the background of intersubjectively recognized normative principles and rules. But they refer to these same problems in different ways. Despite the common reference point, morality and law differ prima facie inasmuch as posttraditional morality represents only a form of cultural knowledge, whereas law has, in addition to this, a binding character at the institutional level. Law is not only a symbolic system but an action system as well.Footnote 33

This transformation from the symbolic level to the action level occurs in law through the act of decision which, in some cases, even turns formerly moral norms into positive law. However, this act transforms the moral norm, as Habermas explains, “inasmuch as moral contents, once translated into the legal code, undergo a change in meaning that is specific to the legal form.”Footnote 34 If canon law wants to be “law” in a way that sounds convincing to contemporary thinkers, the church cannot therefore ignore the act of decision which transforms norms of a conventional, moral, or religious nature into positive law.

4.2.3 The Changeability of Law

That positive law is based on decision corresponds with the finding that positive law is changeable. Niklas Luhmann explains this connection between positive norms and change. As law is based on decision—that is on the selection of certain legal norms from a range of possible alternatives—these alternatives remain plausible options and could thus still potentially become law if the law were to change. Luhmann elucidates, “Valid positive law in any given case excludes other options but it does not eliminate them from the horizon of legal experience. Instead, it keeps them present and ready as possible topics of the law for such a time when a change of positive law seems apposite.”Footnote 35 The same applies to canon law. Positive canon law is essentially mutable. It represents the legislator’s choice of legal norms from a range of possible alternative norms. However, these norms are not eliminated by the act of legislation. Consequently, they might still replace those norms in force to become positive canon law themselves. From a sociological point of view, changes in the law are therefore possible. Not only are they possible, however, they are also necessary. This is because law, in order to stay in touch with the reality of the legal subjects’ lives, must remain in a state of constant change. It must evolve in line with the social order to which it refers. It is the inherent changeability of positive law which helps to maintain a connection between law and social reality. The changeability of positive law therefore also benefits ecclesiastical legislation, as it must maintain the balance between ecclesiastical law and ecclesiastical reality. As positive law, canon law can be adapted to the regulatory needs of any given time. And this happens not only with respect to the norms of purely human origin, but also with norms that the church sees as being rooted in the divine will. In this light, Simon Hecke states that throughout the history of canon law, norms which were formerly regarded as being sacred were frequently changed, added to, or omitted from the body of ecclesiastical law.Footnote 36 Indeed, the ecclesiastical legislator has often gone to considerable lengths to conceal this process of legal reform from view throughout the history of canon law, as Christoph Möllers observes, noting,

Thus, long into modernity, law was rarely understood as an object one could shape or as an instrument of change. It is not by chance that one of the earliest examples of a normative order oriented towards alterability and change was the canonical law of the Catholic church of the late Middle Ages; that is, a normative order that itself is not transcendent but traces its validity to a transcendent order.Footnote 37

Here, Möllers makes two points: Whilst the rootedness of ecclesiastical law in a transcendent prepositive source has inhibited, and still inhibits, many individuals’ understanding of the changeability of law, canon law is unquestionably a legal order that was and is profoundly changeable. Difficulties in conceiving how law founded on transcendent norms can change do not alter the fact that law is capable of change and has changed significantly over the course of history. Scholars of canon law also make the very same observation. Canonist Joseph Koury noted in connection with the 1983 reform of the Code of Canon Law that some legal norms no longer appear in the new version of the Code even though the 1917 Code had claimed they were based on divine law, and that some norms had been transferred from the 1917 Code to the 1983 Code but without retaining their previous reference to divine law. For example, canon 727 of the old Code differentiated between a mere simony “by ecclesiastical law” (§2) and simony “by divine law” (§1). Hence, the old law understood the offence of trading in spiritual goods under certain conditions as having been proscribed by God himself. This differentiation no longer appears in the current Code. While simony is still forbidden and is still punished in some cases (see canon 1380 CIC/1983), it is no longer associated with divine law.Footnote 38 Another example which Koury discusses is the norm in the old Code which prohibited inter-confessional marriages (see canon 1060 CIC/1917). It designated a mixed-denomination marriage as being forbidden by divine law if this marriage might potentially tempt the Catholic partner and the couple’s common offspring to commit apostasy. The issue of mixed marriages as a threat to the faith reappears in the 1983 Code (see canon 1125 no. 1 CIC/1983), but the reference to divine law has been removed. In both cases, and in many others, Koury concludes that there has been a change in the qualification of the respective legal norms. According to Koury, this legislative decision to drop the connection between these regulatory matters and divine law is proof of the legislator’s acknowledgement that the respective regulations are actually purely human canon law.Footnote 39 However, how to explain such a change is open to debate. For Koury, interpretation is key to understanding the development of divine law, “To answer the question of how it is possible that something that was (or was claimed to be) of divine law can be suppressed, some would hold that these were references to interpretations of divine law, and that what has been suppressed are only interpretations.”Footnote 40 Silvio Ferrari follows the same line of thought. He starts with the problem of identifying the divine will. Since the human capacity to grasp the divine will is naturally incomplete, human beings must concede that they can always only partially understand God’s will when making law, “Human capacity to understand the divine law is limited: therefore it is always possible to improve understanding of what God really meant.”Footnote 41 This means that it is always possible and even necessary to revise earlier insights and to amend law which is rooted in the divine will in order to account for new insights about what God truly wants. There is some merit in these epistemological explanations, which see the constraints of human knowledge as the reason why divine will and human norms are not congruent and why humans can change and amend the latter. However, these epistemological approaches, at least if they restrict themselves to the epistemological problem, exclude the ontological dimension of the relation between God’s will and human norms. The ontological perspective focuses more on the necessity of giving God’s will an earthly embodiment in the form of human norms. This incarnatorial approach may, at the same time, explain how changes to norms with a divine origin can come about. Silvio Ferrari clarifies, “most Canon law scholars affirm that divine law cannot be directly operative unless it is not embedded in a human rule: a law in itself is something connected to history, divine law can be known and become binding only through a historical, human medium.”Footnote 42 Hence, we must redefine the blanket claim made by some scholars of canon law that a change in divine law is unthinkable, as Ferrari proposes, “divine law is immutable in itself but it is apprehended by men through instruments which are subject to change.”Footnote 43 Moral theologian Karl-Wilhelm Merks states in a similar vein that the divine does not appear as an additional quality of human reality but within human reality itself. Consequently, for Merks it is clear that divine law can only express itself within human reality and within human norms and human law.Footnote 44 We may reformulate this finding for canon law to take into account the incarnation paradigm mentioned above: The divine will is expressed in human—and therefore positive—law. As it becomes concrete law, the ius divinum becomes thoroughly human as soon as it is incorporated into human norms. And it requires translation into human norms in order to acquire legal validity in church. Consequently, the legislator can reform legal norms, including those which are rooted in the divine will, and adapt them to current regulatory needs of the church. However, the legislator cannot act arbitrarily when pursuing reform, but has to act in accordance with the current state of theological knowledge about what constitutes God’s will and how this will may be expressed best in human norms. It is the task of the ecclesiastical legislator to determine a theologically responsible way in which the divine will can be expressed in human norms in such a way that it corresponds to the ecclesiastical need for regulation in the respective here and now. It is the task of scholars of canon law to critically study if and in what sense the legislator is successful in creating a law that truly responds to the need of the church and to the current state of theological research.

4.2.4 Change as a Learning Process

While the sociology of law acknowledges that changes to positive law are possible and necessary, it nevertheless struggles to explain how legal change occurs. In order to help understand legal change sociologically, Niklas Luhmann constructs a model in which he interprets the development of law as a process of legal learning. Luhmann in fact reconstructs legal change as a learning process in which the legislator reacts to breaches of law. To explain his approach, Luhmann first divides legal decision making into two categories, the legislator’s programming decisions and the courts’ programmed decisions.Footnote 45 While the legislator’s decisions create programmes, it is the task of the courts to apply these programmes. According to Luhmann, it is an indispensable aspect of modern complexity reduction to differentiate between these two types of decision making. At the same time, the differentiation has “a crucial function of implementing learning possibilities into the law.”Footnote 46 Explaining this, Luhmann returns to his definition of law as counterfactual behavioural expectation. Legal norms are counterfactual insofar as they represent expectations which we uphold even after experiencing disappointment.Footnote 47 However, there are two possible types of reaction to the disappointment produced by a breach of law. Some legal actors “process disappointments while holding on to their normative expectations”Footnote 48. These include the courts. As programmed decision-makers, they react to breaches of law not by learning, but by remaining disappointed, as Luhmann explains, “Programmed decision making, and in particular adjudication, are wont to the representation of positive law, the keeping up and sanctioning of normative expectations, the expression of determination not to learn from the lawbreaker. The judge must act in a disappointed and not in a learning way whenever normative expectations are disappointed.”Footnote 49 On the other hand, there are legal agents that are not actually disappointed by breaches of law. A programming decision-maker such as a legislator is regularly not disappointed but rather interested in learning about the reality of legal norms. This includes learning about the effectiveness of the law, but also about its ineffectiveness and dysfunctionalities, about the conflicts arising from legal expectations, and also about the alternative behaviour which the legal subjects engage in when breaking the law.Footnote 50 Instead of expressing disappointment, says Luhmann, the legislator can receive breaches of law as an impulse to learn. In doing so the legislator “may show a readiness to change his expectations. He is the addressee of change requests, the instance of institutionalised learning within the law.”Footnote 51 In order to learn from breaches of the law, it is therefore necessary for programming decision-makers not to react to breaches of law with disappointment, but with interest and a willingness to receive the aberrations. Of course, a legislator cannot respond to every breach of law by changing the law. But if there is broad non-compliance with certain legal norms, the legislator might react by amending the norms. If the legislator concludes that certain norms have become predominantly dysfunctional, then an obvious solution might be to revise them. However, in order to fulfil their function of learning from unlawful behaviour to amend the law, programming decision-makers must resist the temptation to respond to breaches of law with disappointment, because they will otherwise miss the opportunity to learn. Luhmann warns that it is actually possible for legal systems to become immune to legal innovation through disappointment, stating that it is “evident that institutions which reward abiding with normative expectations and a concordant approach to dealing with disappointments block learning opportunities.”Footnote 52 I want to suggest that this tendency exists in church. Observations suggest that ecclesiastical legislators, the decision-makers who programme canon law, tend to react to breaches of canon law with disappointment—thereby squandering much of the innovative potential of legal non-compliance. First of all, it should be noted that the church differentiates between programming and programmed decisions far less decisively than secular political orders. Simon Hecke even suggests that the Catholic Church completely lacks any differentiation between programming and programmed legal decision making.Footnote 53 Although this diagnosis is slightly exaggerated, it is not entirely wrong. What is accurate is that the church does not uphold the strict separation of powers commonly upheld in contemporary democratic political orders. This is because ecclesiastical power theory does not rank the separation of powers among the principles underlying the legitimate exercise of power in church. On the contrary, it traces back all power in church to one “sacred power.” The unity of ecclesiastical power is justified Christologically. All power in church is derived from Christ.Footnote 54 And it is Christ who endows the ordained ministers with all power required to govern the church. This theory of the unity of ecclesiastical power with its origin in Christ places power in church firmly in the hands of the clergy. The power to govern the church is administered by the clergy alone (see canons 129 §1, 274 §1 CIC/1983). Ecclesiastical power of governance, which includes the capacity of ecclesiastical legislation, adjudication, and administration, is in the hands of the pope and the college of bishops as far as the global church is concerned (see canons 331, 336 CIC/1983), and in the hands of the diocesan bishops with regard to their local churches (see canons 381, 391 CIC/1983). These authorities’ powers are not separated according to the democratic principle of the separation of powers. Instead, the power attributed to the pope, the college of bishops, and the diocesan bishops is concentrated in accordance with the absolutist model of governance. Nevertheless, the power to govern the church is functionally divided into legislative, judicial, and executive power (see canon 391 §1 CIC/1983). Whilst the church does not therefore have a separation of powers, it does have a division of powers at the functional level. However, this differentiation is for purely pragmatic reasons. It allows for the division of the organisational work involved in governing the church (see canons 360, 391 §2 CIC/1983). While the task of ecclesiastical legislation always remains with the pope and the college of bishops with regard to the global church, and with the diocesan bishops for their local churches, these authorities can carry out adjudication and administration themselves, but may also entrust these tasks to other clerics, such as the vicars general who exercise executive power and the judicial vicars who exercise judicial power on behalf of the diocesan bishops. The Roman Curia and the episcopal curias carry out administrative tasks on the level of the global and on the level of the local churches, while the papal and episcopal tribunals carry out the adjudication. So whilst there is a functional separation between programming and programmed decisions in church, their separation of powers is not understood as being necessary with regard to the legitimate exercise of power in church. This is why the church sees no need to draw a clear distinction between the powers as one might expect to find in contemporary secular orders. As for the question of whether ecclesiastical legislators succeed in learning from their legal subjects’ breaches of law, this finding suggests that the relevant authorities might find it hard not to react to breaches of law with disappointment and instead with interest and curiosity, which allows for legal learning. Since the pope, the college of bishops, and the diocesan bishops have the authority to make programming and programmed decisions, each authority would have to succeed in a strict internal separation of roles in order to react differently to breaches of law. While the authorities have to respond with disappointment to breaches of law in their role as programmed decision-makers, they have to explicitly not react with disappointment in their role as programming decision-makers; instead, they must react with an openness to learning. However, as I want to suggest, it is rather unlikely that ecclesiastical decision-makers can constantly switch roles in this way. This observation might explain, from a sociological point of view, why canon law often seems slow to learn and why there are obvious difficulties in increasing legal learning and development in church. The deficiency of legal learning in church might therefore be—at least in part—the consequence of a lack of distinction between programming and programmed ecclesiastical decision making. This observation in fact supports the thesis that the absence of a clear separation of powers in church is hostile to innovation in canon law.

4.2.5 How to Procure Legal Change

A clear separation of programming and programmed decision making enables programming decision-makers to recognise the innovative potential of breaches of law. Yet from a sociological point of view, the actual process of changing and developing positive law is by no means as easy as Luhmann’s learning model suggests. Quite simply, it is not enough if only those who develop the law learn from breaches of law. They must also succeed in communicating legal changes to the legal subjects. The legal community, however, associates certain behavioural expectations with the legal norms it is familiar with, even if breaches of law have repeatedly disappointed these expectations. Changes in the law therefore present legislation with the challenge of effectively converting the legal subjects’ expectations “to adapt expectations and actions to other norms.”Footnote 55 Luhmann states that legislation can with relative ease replace norms when there is a political need to do so with norms which are widely unknown to the legal community. Whenever the legal subjects fail to notice legal change, development of the law does not arouse much critical interest, as Luhmann observes, “This facilitates an almost unnoticeable exchange of norms according to the extent of the interest of particular minorities, without having to tear essential meanings away from hearts and minds.”Footnote 56 This virtually invisible method of reforming the law represents an enormous benefit to legislative work, as it frees the legislators from constantly having to provide detailed justifications for their actions. From the viewpoint of political science, with its associated empirical perspective, Klaus Röhl adds the observation that political institutions rely to some extent on the apathy and ignorance of the public, insofar as an informed and critical public tends to inhibit their smooth functioning, including the functioning of legislation.Footnote 57 Without diminishing the value of a critical public, especially for key legal issues such as legitimacy, we may perceive public criticism—from a sociological point of view—primarily as an obstacle to the activities of political institutions. This obstacle is frequently lacking in the development of rather insignificant legal norms about which the legal subjects have only a rudimentary knowledge. In such cases, Niklas Luhmann speaks of “trivial law,” citing by way of example regulations on “premiums for the destruction of apples in a particular harvest”Footnote 58 about which, in contrast to norms about murder, marriage, or property, the legal community knows relatively little. According to Luhmann, we should not regret most legal subjects’ lack of knowledge in this regard, but rather understand it as a necessary coping strategy for dealing with the sheer complexity of sophisticated and elaborate laws. Their ignorance, in any case, is also a prerequisite for the constant development of the legal system, because it allows the legislator to undertake any necessary adjustments to the law in circumstances of enormous social complexity without having to anticipate any major resistance. While the legislator can adapt trivial law to changing regulatory needs without attracting much attention, the development of key legal matters—such as socially significant and prominent norms—proves much more difficult. The silent and seamless exchange of legal norms in this field is unrealistic, insofar as the general public has at least a rudimentary knowledge of them and their revision frequently triggers a critical response. Moreover, changing norms without the community noticing would make little sense with respect to compliance, since it would inevitably lead to the legal subjects involuntarily breaking the new law, due to their being uninformed about the change. When changing relatively prominent norms, the legislators must therefore seek to align the legal subjects’ expectations and actions with the new norms, without fundamentally disappointing the legal subjects. This is only possible, as sociologist of law Stefan Machura explains, if the legislator refrains from making too many changes at once. Whilst it might be true that all legal norms are replaceable in principle, they cannot be changed at will and at any time.Footnote 59 Gradual change is likely to find greatest social acceptance, Machura argues, because it allows for the legal subjects’ expectations of the law to evolve slowly over time.

4.2.6 Destabilisation Through Change

We should not underestimate the difficulty of reforming key legal norms under the watchful eyes of a critical legal community, not even in church. Simon Hecke points out that while canon law, including norms grounded in divine law, has been renewed constantly and sometimes erratically throughout history, the contemporary context makes it far more difficult to amend norms, not because of the challenges posed by making legal changes per se, but because of the public perception and appraisal of such changes. As is the case with state law, it is virtually inconceivable that any amendments to key canonical norms might go unnoticed today. Public interest is simply too great. The ecclesiastical legislator is therefore also tasked with ensuring he amends legal norms in a way that allows the legal subjects to adjust their expectations to the new norms and to experience as little disappointment as possible. A very recent example serves to illustrate this difficulty. When Francis, with the help of the papal law Traditionis custodes, abrogated his predecessor’s regulations on the old Latin Tridentine liturgy a couple of months ago,Footnote 60 this legal change affecting the liturgy as a public action of the church did not go unnoticed. Many traditional Catholics were outraged. Some groups are at present calling for resistance to the law and even considering a schism following their huge disappointment in this piece of papal legislation. From a sociological point of view, this example shows that legal reform may have serious repercussions in a legal community, even legal reforms undertaken with the express intention of avoiding further division among antagonistic groups within a legal community, such as liberal and conservative Catholics in the Catholic Church, as was intended with Traditionis custodes. However, whilst the recent papal legal reform of the liturgy deeply disappointed some legal subjects, others have embraced the very same reform as an urgent and necessary step towards reforming the church. Many Catholics would also welcome further reform measures. Most German Catholics, for instance, would welcome any move by the legislator towards abrogating the obligation of celibacy for the clergy (see canon 277 §1 CIC/1983). Whilst there are certainly church members, even in Germany, who consider celibacy meaningful for the clergy, an overwhelming number of German Catholics would welcome its abolition.Footnote 61 In a similarly way, they would welcome amendments to the law on ordination with respect to gender equality (see 1024 canon CIC/1983),Footnote 62 and an opening of offices with the power to govern the church to lay women and men (see canon 274 §1 CIC/1983). Consequently, these and similar key legal changes, which would affect ecclesiastical organisation profoundly, would not disappoint many Catholics—at least from the churches of the northern hemisphere—too greatly on the whole. However, despite low levels of disappointment, the transition from the old to the new law might still prove difficult, as Simon Hecke assumes, due to the challenge of keeping the ecclesiastical legal system stable during the transition process. As a legislator who is willing to surrender important legal provisions gives the impression that other norms are also susceptible to change, radical change might undermine the stability and permanence of the law, as Hecke points out. Changing key regulations can therefore have a destabilising effect on a legal order as a whole or on major sections of the law. And it might affect the legal community greatly, as change also touches upon associated issues of identity, as the example of Traditionis custodes demonstrates. A community that suspects the law and the structures built upon the law of instability might lose its belief not only in the law itself but also in the community as a source of identity. In this light, it is rather unsurprising, from a sociological point of view, that church authorities currently tend to prefer a strategy of immunisation and resistance to reforming canon law. Hecke explains, “‘Whatever I touch falls apart’ Franz Kafka once noted in one of his Oktavhefte … The Catholic Church therefore refrains from ‘touching’ canon law with reformist intentions of all sorts.”Footnote 63 And even when the church touches the law, as happened just recently with the reform of canonical penal law, the changes tend to be rather minimal. While the reform of canonical penal law, published in June 2021, was presented to the ecclesiastical public with much ado, it was actually much ado about—not much, to put it mildly. The fact that “touching” individual norms can trigger processes of disintegration that affect the entire order or individual sections of it is an insight that the sociology of law has inherited from general sociology. It coincides with the principle of the domino effect or the so-called broken window theory, as elaborated by sociologists James Wilson and George Kelling in the 1980s.Footnote 64 Even a small impulse, such as one broken window, is often enough to initiate a destructive chain reaction; this principle is as established in organisational sociology as it is in criminology. The broken window theory also pertains to changes in the law, especially when the legal system or a legal matter in question is already under pressure. Removing sections of an order that is already under attack might lead to its partial or total collapse. A thought experiment might help to illustrate this phenomenon with regard to ecclesiastical law. In the foreseeable future, the ecclesiastical regulation excluding women from ordination might serve as an example of how changing one legal norm might create a domino effect which brings down other norms as well. Canon 1024 CIC/1983, which restricts ordination to men is, after all, a legal provision which has come under considerable pressure in church—as described above. Should the diaconate for women become a reality, as is currently being discussed (again), this “touching” of a single provision could have far-reaching consequences for the whole regulation on women’s ordination. This is because reforming the law on the diaconate would most probably, in the long run, have a knock-on effect on women’s access to the priesthood and the episcopate. Although the magisterium and the legislator have been seeking dogmatic and legal clarifications that make a clear distinction between the diaconate on the one hand and the priesthood and the episcopate on the other,Footnote 65 one may strongly assume that reform on the entry requirements of the diaconate will eventually lead to a call for further legal changes with regard to the priesthood and the episcopate, too. If the highest authority of the church agrees to review the law of the diaconate, it seems inconceivable that he will be able to do so whilst perpetually excluding the female priesthood and episcopacy from the debate. I do not write this as an appeal, but simply as a plausible description of a possible reality. However, that I am obviously not alone in making these assessments is clear to judge by the already cautious reactions by many members of the hierarchy to the diaconate for women. Their hesitance can be interpreted as factual doubt. However, it might also be motivated by the desire to avoid initiating processes of disintegration unleashed by change, which would affect the laws on ordination and the clergy more generally. Just as New York Police Commissioner William Bratton—reacting to Wilson and Kelling’s study on the effects of broken windows—pursued a strategy of zero tolerance in the 1990s to save certain New York neighbourhoods from decline, so today many members of church hierarchy are seeking to prevent the entry of women into the clergy by adopting a policy of “zero tolerance.” Whilst the recent reform of canonical penal law has not changed much about the law, the legislator has been at pains to integrate the offence of attempting to confer ordination on women, sanctionable by the serious punishment of a latae sententiae excommunication, into the Code of Canon Law (see canon 1379 §3 CIC/1983). While the penal norm itself is not new,Footnote 66 it has now found a prominent place among the canonical list of offences against the sacraments. Here it stands as a reminder to all Catholics that the official church does not tolerate women breaking and entering into the hierarchy, by punishing women who try and take this step and by punishing men who support them in their attempt to do so. One may either wonder about the harshness of the regulation, or one may read it in the light of the broken window theory as a policy of zero tolerance. Concealed behind the formula of the “unity of the sacrament of Holy Orders”Footnote 67 there seem to be concerns that are less about theology and more about the fear that “touching” one legal provision could trigger an unstoppable momentum for reform with consequences for the whole legal order. The ecclesiastical authorities’ strategy of immunisation therefore serves to protect the stability of canonical constitutional law in its present shape. Nevertheless, we should not forget that immunisation is also a risky strategy, because it diminishes many legal subjects’ willingness to acknowledge a law which is widely resistant to change. Simon Hecke outlined in this respect that the critical dearth of reform with regard to canon law has led many church members to withdraw their support for canon law.Footnote 68 This precarious balancing act between the need for change and maintaining stability is not unique to the church, but applies to all law. In his theory of norms, Christoph Möllers states, “The question of where exactly to draw the line between identity affirmation and problem-solving remains a fundamental challenge for every normative order.”Footnote 69 In church, this problem certainly needs to be addressed rather urgently, because canon law is facing massive problems of legitimacy. I will revisit this observation in the following section in my discussion on how the validity of law connects with its legitimacy.