The Sources of Law in our Research

The Chair Innocent III was created to promote the scientific research regarding History of Law, Ius Commune and Canon Law, giving priority to the reading, the contextualisation and the analysis of the contents and of the form of the source, following the approach outlined by Professor Javier Belda Iniesta.
Traditionally, the study of History in the Ecclesiastical Faculties of Canon Law is divided into History of the Sources and Science and History of the Institutions. According to us, this division doesn’t only respond to the need for a didactic simplification, but it also responds to the need to approach the study of canon law starting from the adequate perspective.
A good legal research in the field of canon law can't leave aside the analysis about the origin of the institutes, that is to be found in the law in force and not in force. The authentic knowledge of canon law can’t leave aside the historical perspective. In the study of the sources, according to us, a particular consideration should be given to the fontes iuris essendi, which include the social realities that contribute to the creation of the legal norms and of the legal system on its whole. 

The study of the sources of production of the law and, in particular, of the formal source, allows to understand: the historical circumstances in which the canonical institution was created; the identity of the legislator and his original intention; the connections with the other legislators of the legal system and with the other ecclesial realities; the awareness that the canonical authority has of itself. 

These are really valuable information, not only in order to understand the law and the hierarchical order of its sources, but also for the necessary adaptation of the legal system to the new historical circumstances: which formal source, here and now, is more adequate to introduce a specific new norm? 

Frequently, the legislator and the community are identified as the only social factors that contribute to the production of law, based on the traditional distinction between law and custom, so the analysis of the form as such is neglected.

 The consequence is the lack of a theory about the formal sources, able to guide the professionals of law in the analysis and in the application of the norms. 
The classification of the so-called sources of cognition, meaning of the tools that allow to better understand canon law, has an irreplaceable role in the theory of the sources, since it allows the researchers to orient themselves in the legal system and in the hierarchy of its norms, but it risks to become a list of titles and names, which artificially separates law from the reality for which it is created and that it wants to regulate.
The study of the form of the sources also highlights another aspect. The legal system of the Church is in force concurrently with the civil legal systems, with which it shares the territory and the community that must observe the norms. Essentially, the birth of the Church has caused the existence of two Laws for a single group of persons, who are citizens and faithful at the same time. Therefore, between the canonical legal system and the secular ones, we inevitably find points of contact, which can consist in contrasts or in concurrences, depending on the subject matter. The relations between the Church and the political communities have influenced a lot the evolution of canon law, not only regarding the content of the norms, but especially regarding the form of the sources of law. 

The form of the source of production of law is the litmus test of the relation between the Church and the political communities, because from the source we deduce the comprehension that the ecclesiastical authority has of itself, also in relation with the other legal systems that share with the canonical legal system the community whose life they want to regulate.
As previously mentioned, all the research activities of the Chair, regarding the study of History and of the Canon Law in force, are conducted by giving priority to the analysis of the form of the sources. In fact, we consider that the information that derives from the study of the form are essential for an authentic comprehension of law, with no abstraction, because the "container” that conveys the rule somehow completes its contents as well, and it allows the person who interprets it to situate it correctly inside the legal system and to apply it properly to the actual facts.


CALL FOR PAPERS - Vergentis. Revista de Investigación de la Cátedra Internacional Conjunta Inocencio III

CALL FOR PAPERS Vergentis. Revista de Investigación de la Cátedra Internacional Conjunta Inocencio III Print ISSN: 2445-2394; Online ISSN: 2...