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.
