Golde, H.M.G.J. van (1988)

Law of Grace
The Theological Foundations of Canon Law According to Hans Dombois in His Work “Das Recht der Gnade”
Washington, D.C.
The Catholic University of America
1988

A Dissertation Submitted to the Faculty of the School of Religious Studies of the Catholic University of America in Partial Fulfillment of the Requirements for the Degree of Licentiate in Canon Law, April 1988 [copied typoscript]

[This work appears here courtesy to the order of the Jesuits (province of the Netherlands and Flanders ).]

Golde, H.M.G.J. van (1988) Title

The Catholic University of America
Canon Law Studies

 

 

Law of Grace.
The theological foundations of Canon Law
according to Hans Dombois
in his work
Das Recht der Gnade

 

by

Herman Maria Gerardus Johannes van Golde. S.J., J.D.

 

A Dissertation
Submitted to the Faculty of the School of Religious
Studies of the Catholic University of America
in Partial Fulfillment of the Requirements
for the Degree of
Licentiate in Canon Law

 

April 1988
Washington, D.C.

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This dissertation fulfills the thesis requirement for the licentiate in canon law degree.

 

Signed:
Director Ladislas M. Örsy

Signed:
Reader John E. Lynch

Golde, H.M.G.J. van (1988) ToC

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Table of Contents

 

Preface — v

Chapter 1. Introduction — 1
I. Hans Dombois — 1
II. Dombois’ Method — 4

Chapter 2. Juridical theory — 10
I. Types of Law: Law of Justice and Law of Grace — 10
II. Personal and Transpersonal Institutions — 15

Chapter 3. Theological Standpoint — 17
I. Justification and Salvation — 17
II. Anthropology — 18
III. Ecclesiology — 19
 a. Church as Institution — 19
 b. The Opus Proprium of the Church — 23

Chapter 4. Juridical Interpretation of Theological Categories — 28
I. Principle — 28
II. Covenant and Testament — 29
III. Representation — 31
IV. Work and Merit — 32
V. Justification and Grace — 33
VI. Sacraments in General — 36
VII. Sacraments in Particular — 39
 a. Baptism — 39
 b. Confirmation — 41
 c. Eucharist — 42
 d. Marriage — 43
 e. Ordination — 44
 f. Reconciliation — 46
 g. Sacrament of the Sick — 47
VIII. Preaching and Profession of Faith — 48
IX. Office — 49

Chapter 5. Canon Law is Law of Grace — 55
I. Canon Law is Part of the Essence of the Church — 55
II. Canon Law and Grace — 57
III. Canon Law as Liturgical and Confessing Law — 61

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Conclusion — 64

Sources — 67

Bibliography on Hans Dombois — 68

Selected Bibliography on Theology of Law — 70

Golde, H.M.G.J. van (1988) Pref

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Preface

 

The study of canon law has to include critical reflection on canon law in general and on the canon law of a certain christian church in particular. For the purpose of such critical reflection several questions must be asked. An obvious one is the question concerning the just and equitable content of the canon law that concretely governs the christian life of the members of a concrete church. However, before that question can be answered, more fundamental ones arise: why is there canon law in the first place? and what kind of a law is canon law?

Reflections upon the latter questions have produced very varied answers in the past two centuries. One extreme position sees canon law as a betrayal of the original Gospel message and as a man-made instrument taking the place of the direct governance of the christian community by the Holy Spirit. Others, less extreme, consider it a necessary evil functioning within the ecclesiastical community — just as civil law functions within society — for the purpose of keeping order amongst its sinful members. Still others think that it belongs among the essential theological aspects of the Church: she

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does not need law because she is like other human societies, but rather she needs a different kind of law precisely because she is fundamentally different from other societies. Finally, a second extreme position makes canon law into a concretization of theology, thus downplaying its independent juridical character.

Those who hold the third position, which sees canon law as an essental theological aspect of the Church, often try to justify its existence and analyze its character by indicating that canon law finds its foundation in the sacraments of the Church, of better: in the fact that the Church is the sacrament of God’s salvation for the world. We can find an example of this theory of sacramental foundation of canon law in the writing of Hans Dombois. Unfortunately these writing have not been well received, due to their unusual combining of juridical theory with theological reflection. In English speaking countries, they have scarcely been read.

Hans Dombois has written a large number of works.1 His main publication, “Das Recht der Gnade” (“Law of Grace”), consists of three volumes, penned during a periode of more


1 In a recently published bibliography we count 16 books under his own name, 11 coedited books, 166 articles, and 34 articles in lexica. Cf. S. Riese, “Bibliographie Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):556-568.

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than two decades.2 In this thesis I analyze these three volumes and offer a systematic presentation of Dombois’ personal theology of law that is found in them. By concentrating on Dombois’ theology of law, I will not touch on many other aspects of this very rich compilation of analyses, thoughts and theories. In general, my purpose is no more than a systematic presentation of Dombois’ own thought. Only on very few occasions, trying to draw attention to pivotal aspects of his reasoning, will I raise a question or make some critique; when I do so, I wish to indicate where a further development of Dombois’ thinking is possible; and I will do so only in footnotes, so that the main text follows Dombois’ thinking very closely. The footnotes, which indicate the particular parts of the work that bear upon a certain issue, and which often refer to passages in more than one of the volumes, demonstrate that Dombois remained consistent in his thinking throughout the work: only on the level of terminology are there some inconsistencies which I point out where these are of significance.

In the introduction, which follows hereafter, I give further information on Dombois himself that should prove helpful for an understanding of the themes that he


2 Hans Dombois, Das Recht der Gnade. Oekumenisches Kirchenrecht, 3 vols. Witten/Bielefeld: Luther-Verlag 1961-1983. I will cite this work by indicating the volume number in roman numerals and the page numbers in arabic numerals.

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particularly emphasizes in his thinking. Furthermore I try to give some insight into the method that he uses in his analyses.

To be able to follow Dombois’ theology of law, I first have to present in some detail a few juridical concepts which he uses; I do so in the second Chapter. Some of Dombois’ juridical concepts are quite different from the ones we are used to, so that caution is necessary. This is apparent when he introduces two different types of law, law of grace and law of justice. We are, through our legal systems, very familiar with the latter, which is basically a system of rules that indicate the rights and duties of the members of the legal community. The former, however, is closer to what canon law is all about, namely a system of interrelated juridical statuses that indicate the juridical relationships between the members of the community. Dombois’ concept of personal institution, to be understood as the process — and not the result of that process — of granting people their respective statuses within the community, is another peculiar redefinition of an existing concept. I present this theoretical background in the second chapter.

The third chapter is dedicated to the general theological viewpoints that are fundamental to Dombois’ theology of law. He embraces the theological insight that salvation is not just a matter of the individual human

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being receiving God’s grace. Human beings are necessarily social beings so that salvation, if it is to have meaning for human beings, has to have a social dimension. This social dimension is to be found in the fact that salvation has to take place within the ecclesiastical community. In the actions of the Church, in which she expresses herself as God’s instrument of grace for concrete human beings, this social dimension must be present. The actions of the Church are first and foremost the administration of the sacrament, the preaching of the Word of God and the profession of faith.

These actions of the Church communicate grace, and communicating grace means granting a person a certain status within the ecclesiastical community. Dombois wants to find out how exactly this theological reality of the communication of grace through instituting actions of the Church takes place. And then he applies his insight that analysis of the juridical concept of grace and reflecting upon what it means to grant someone a status in a juridical way are helpful in understanding the theological reality of grace and the Church’s instituting actions also. In the fourth chapter this juridical rethinking of theological categories is presented. The communal ecclesiastical aspect of grace shows itself to be present in all the actions of the Church in which she manifests herself as mediatrix of grace.

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The juridical interpretation of the actions of the Church not only helps one to understand them better; it also indicates that they have an inherent juridical structure. This juridical structure brings with it the fact that relationships between members of the Church have to be formulated in juridical terms. In doing so it shows to me more law of grace than law of justice that is the appropriate and typical form of law for the Church. And this is what Dombois means by canon law. The most important juridical aspect of the actions of the Church will turn out to be the jurisdictional one: every ecclesial action presupposes a decision made by an official minister as representative of the Church. Canon law will have to provide an answer to the questions of competency that will necessarily be raised in every Christian church. A further elaboration of the way in which canon law is grounded in the actions of the Church is the theme of the last chapter.

Golde, H.M.G.J. van (1988) C1

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Chapter 1

Introduction

 

I. Hans Dombois.

Hans Dombois was born October 15, 1907.3 Although his French name indicates that his ancestors were Huguenots and fled France during the persecution of this protestant religion, Dombois is Lutheran (evangelisch). He studied civil law and acquired a doctorate in law a few years after the Second World War. He worked mainly as a public prosecutor and a judge. Being interested in theology and canon law, however, he served for many years on commissions of the Lutheran Church on canon law4 and on


3 The Zeitschrift für Evangelisches Kirchenrecht dedicated the Fall number of 1987, no. 3 of vol. 32, as a Festschrift to celebrate his 80th birthday.
4 After the Second World War the Lutheran Church in Germany could not refer to the state for her legal structures any more and had to work on developing a more ➝

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the Canonical Workshop of Heidelberg,5 and he wrote many publications on the theology of law. Because of his merits in that field he received a doctor honoris causa degree in theology.

His background in civil law accounts for his juridical approach to theological questions. This approach is often not appreciated by theologians and is probably not always easy to follow for those who are without a juridical training. Furthermore, Dombois has been a fervent defender of the need for a distinct and clearly formulated canon law,6 which position does not have a strong tradition within the Lutheran Church. These may be some of the


➝ elaborate canon law of her own. Dombois served on the commissions that prepared many of the innovations.
5 Kirchenrechtliche Arbeitsgemeinschaft Heidelberg.
6 Dombois greeted the fact that the end of the episcopal authority of the German princes over the Lutheran Church (das fürstliche Summepiskopat) after the First World War and the struggle between the Confessing Church (Bekennende Kirche) and the State Churches (Länderkirchen) during the Nazi regime (Kirchenkampf) freed the Lutheran Church from undue influence of the state in the Church. Only the one who confesses the faith — which the state as such cannot do — can give the Church her law (I:9-10; 12; 68-70; 73). Legalism and juridical positivism, which theories conceive the content of the law solely dependent upon the will of the legislator, were wide spread among lawyers and the leaders of the official Lutheran Churches before and during the Second World War so that they did not have a critical approach of the Nazi regime. Dombois’ involvement in the Confessing Church, therefore, accompanies his rejection of legalism and juridical positivism and his favoring of natural law. Cf. U. Scheuner, “Zur Rechtstheologie von Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 23 (1978):3.

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reasons why, although his reflections are highly respected, his ideas have nevertheless not met with many enthusiastic reactions and have not been received and integrated into other works on theology of law in Lutheran circles. On the other hand his theological position, at least in its wording, stays very much traditionally Lutheran: this makes it less accessible and acceptable for Catholic theologians and canonists.

Throughout his life Dombois has been interested in the ecumenical question. Therefore his reflections on the foundations of canon law and on the theology of law, which were the central focus of attention in his scientific work, have always had an ecumenical orientation.7 It is important that he gave his main work, on which this thesis concentrates, the sub-title “Ecumenical Canon Law.”

His ecumenical interest may have been one of the reasons why Dombois became a member of the Michaelsbruderschaft. This organization tried to take up within the Lutheran Churches the old tradition of religious life. The members are all protestants but come from different denominations. They life a kind of community life in which community prayer and the celebration of the Eucharist have an important role. Thus Dombois has linked his theological reflection with praxis


7 P. Landau, “Vorwort,” Zeitschrift für Evangelisches Kirchenrecht 23 (1987):241.

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pietatis: and he considers this approach to be ideal.8 This not only sheds light on his interest in liturgy and on his methodological emphasis on reflection on the liturgical practice of the Church as source for canon law,9 but it also sheds light on the — in Lutheran eyes — catholicizing aspects of his thinking. The latter were often not welcomed within Lutheran theology, another reason for the limitedness of his influence within the Lutheran Church.

 

II. Dombois’ Method

Dombois tries to give a general theory of canon law which is valid for the entire Church, the One Church of Jesus Christ.10 He calls his method for coming to such a theory inductive-phenomenological, as opposed to deductive-philosophical.11 To gain insight into what the Church is one first has to look at what she does. By analyzing the actions of the Church in which she expresses herself as such, one can inductively find what makes the Church to be


8 III:221-224.
9 J. Hoffmann, “Grâce et Institution selon Hans Dombois. Une nouvelle approche du mystère de l’Église,” Revue des Sciences Philosophiques et Théologiques 53 (1969):65, nt. 37.
10 I:11.
11 I:53; 80; III:9.

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the Church of Jesus Christ.12

Existential interpretation of what happens in the Church is always juridical interpretation.13 This kind of phenomenological analysis of the Church’s actions — and not deduction from some philosophical insight into the essence of the Church — will make clear what canon law is and what its content should be, for “canon law has to ask about the juridical understanding, expression and constitution of the Church’s legitimate actions.”14

To understand what this means in practice one must take into account that the Church is not one any more but is divided into many different Christian churches whose origin must be examined.15 This history of schisms shows that “the essential and interrelated (dialectic or complementary) opposites that are to be found in the


12Esse sequitur operari and not the other way around (II:15).
13 I:894; II:14-15. This key point in Dombois’s reasoning has to be looked at more closely in Chapter 4, Paragraph I.
14 “... dass das Kirchenrecht nach dem rechtlichen Verständnis Ausdruck und Verfassung des legitimen Geschehens der Kirche zu fragen hat.” (I:771). Cf. also III:288.
15 To be able to understand what Dombois’ method encompasses especially in its ecumenical perspective, we have to look at part of his ecclesiology, namely his theory on the fact that the one universal Church of Christ — which I will indicate by the capitalized word “Church” — exists divided into many Christian churches. The following part of this paragraph, therefore could be repeated at the beginning of Chapter 2, Paragraph III which treats his ecclesiology as a whole.

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Christian faith are broken apart and have disintegrated into their elements.”16 Through this process of disintegration17 one or more of the essential elements of the Church have been overemphasized by the different individual confessional churches (Konfessionen) to the neglect, meanwhile, of the others.18 The emphasis is reflected in their juridical constitutions.19 The process has the advantage that “through the existentialization of one part a new positive concentration in particular formations has become possible.”20 Its disadvantage is that the different churches start to “suppress from consciousness the partiality that has come about and to replace it with the postulate that the part is virtually


16 “... die im christlichen Glauben erhaltenen wesentlichen und bezüglichen (dialektischen oder komplementären) Gegensätze sind aufgebrochen und in ihre Element auseinandergetreten;...” (II:65)
17 This process can be initiated by forces from within or from outside the Church (II:73-79; 80-81).
18 An example would be the element of the Church’s universality, which is overemphasized by the Catholic Church and institutionalized in the supremacy of the pope, or the element of the individual congregation, which is overemphasized in the reformed churches and institutionalized in their congregational structure.
19 II:87-88.
20 “... durch die Existentialisierung eines Teils eine neue positive Verdichtung in partikularen Gestaltungen möglich geworden ist.” (II:66)

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the whole.”21

The process of overemphasizing one or more elements of the Church, however, is not breaking away from the original faith: the essential elements of the Church that are not emphasized by a particular church are not and cannot be totally dogmatically or spiritually negated. A confessional church can claim validity, but not total validity. Systematically and historically it cannot be accepted that one confessional church claims to be the only one with the right and full understanding of the faith and to be the only church in the full sense of the word. Because of the prevalence of one or some elements, other elements are lacking or only present in a deficient way, so that these churches can only exist under the condition of the existence of the universal Church which surpasses them all and brings them together. The confessional churches mediate the universal Church.22 The different confessional churches are founded upon the old professions of faith — the apostolicum and the Nicene creed — next to their own secondary dogmatic formulations.23 Furthermore, it is important that “the individual historical forms, which in time came one after


21 “... die eingetretenen Vereinseitigung aus den Bewusstsein zu verdrängen und durch das Postulat zu ersetzen, dass dieser Teil virtuell das Ganze sei.” (II:66)
22 III:14; 113-114.
23 III:135-140.

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the other, at the same time stay in existence one next to the other.”24 The analysis of the different Christian churches, therefore, does give access to the whole, to all the essential elements of the Church.

In addition to their emphasis on different essential elements of the Church, the confessional Churches have different juridical structures and canonical traditions. Canon law history is, however, not a history of falling away from the original, instituted juridical structures of the New Testament Church. Every historical situation calls for a new form of canon law. There is no absolute form in history that one can and should go back to. A theory about canon law should not limit itself to one form or one tradition but should study all developments and by doing so it will come closer to the essence of what constitutes canon law (Kirchenrechtsverfassung).25

The study of canon law tries to make the analysis of the essential elements of the Church in the different Christian traditions from a juridical perspective, concentrating on covering all the essential elements; thus it is ecumenical from the very start. At least there are ecclesiastical actions that are common to all confessional churches. These actions can serve as a foundation for a


24 “... die einzelnen historischen Formen die zeitlich aufeinanderfolgen zugleich nebeneinander bestehen bleiben.” (II:66)
25 II:21-26; 33.

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general, ecumenical canon law.26 Thus canon law can become the basis for an ecumenical movement in which the different churches leave behind their partiality and reintegrate other essential elements of the Church with the ones they emphasized — elements with which they are still linked up through their Christian faith.27


26 II:172-176.
27 II:65-66; 87-89; 93; 101-102.

Golde, H.M.G.J. van (1988) C2

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Chapter 2

Juridical Theory

 

I. Types of Law: Law of Justice and Law of Grace.

Dombois devotes much effort to fighting “the fundamental and fatal error of equating law (Recht) with norm (Gesetz).”1 There are two fundamental types or forms of


1 “... den grundlegenden und verhängnisvollen Irrtum der Gleichsetzung von Recht und Gesetz ...” (I:14)
It is hard to translate the concepts of Recht and Gesetz. The former refers to the entire juridical system governing a certain society, nation or, as in our case, a church; the latter to a statutary law — a juridical phenomenon formulated in the form of a rule — or to the whole of such laws, governing a certain society, nation or church. Other languages have two words for the two different concepts, too, like ius and lex in Latin, droit and loi in French, derecho and ley in Spanish and dirito and legge in Italian. Writing in German and thereby having access to two well-defined concepts that express exactly what he wants to refer to, Dombois is able to discuss the problem which he is raising here more readily than someone writing in English, which language uses the same word — law — to indicate both concepts. Despite occasional concessions for the sake of what sounds good in English language usage I try to be consistent in using ➝

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law: law of justice (Gerechtigkeitsrecht) and law of grace (Gnadenrecht).2 The error of equating law with norm is the result of a double reduction: reducing all law to law of justice and reducing law of justice to normative law.

The fundamental juridical structure of law of justice is not the norm but the process whereby a claim (Rechtsanspruch) and the acknowledgment of the claim (Rechtsanerkennung) come together, the partners involved being convinced that the claim is just, justified. The process creates and is summarized in the fundamental juridical phenomenon of individual rights.3 The process presupposes a juridical community (Rechtsgemeinschaft)


➝ “law” when referring to Recht and “norm” or “normative law” when referring to Gesetz.
2 I:207.
3 I:50; 78; 163-169; III:21. The process whereby a claim and the acknowledgement of it come together indicates that a person has a right. This right can exist in the undertaking of an action without being hindered by others who thereby acknowledge the inherent claim to the action, or it can exist in the requirement of an action by another person — or other persons — which action is not refused and acknowledged as due to the one who has the right.
A similar and connected error to the one mentioned above is to limit law to whatever rule or right can be enforced by power; the coercive aspect of law is not an integral part of the juridical phenomenon. The acknowledgment of a claim can come forth and mostly does come forth without any enforcement and a right can exist even if the acknowledgment is not followed up by the required behavior. E.g. international law does not have any means of enforcement but is still law and creates rights, claims and acknowledgments (I:844; 877-878).

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between the parties involved, and the juridical relationship between the parties involved has social effects on third parties (Drittwirkung).4 Furthermore, there has to be a third party or authority which justifies the claim. The justification, however, does not necessarily have to be a system of normative objectification, i.e. normative law.5

The second, but no less original type of law is law of grace. Dombois gives a definition of grace

Grace is a juridical process in which a destroyed juridical relationship between two people is restored or a new relationship is brought about through the fact that the giver, who has a unilateral right to do so, gives, by means of a concrete gift to someone who has no right to it, out of an overarching juridical power a new foundation or improvement of his juridical position as a free and not owed favor. Grace needs acceptance by the one who is graced. It does not depend upon the personal accomplishments of the one who receives it, but obligates that person to gratitude with juridical force in the sense that violating the obligation leads to losing the favor.6


4 Cf. Paragraph II and especially note 17.
5 I:163-169; III:111.
6 “Gnade ist ein Rechtsvorgang, in welchem zwischen zwei Personen ein zerstörtes Rechtsverhältnis wiederhergestellt oder ein neues dadurch begründet wird, dass der einseitig berechtigte Geber kraft überlegener Rechtsmacht durch eine konkrete Zuwendung der Nichtberechtigter eine Neubegründung oder Mehrung eines Rechtsstandes als freie nichtgeschuldete Begünstigung zukommen lässt. Die Gnade bedarf der Annahme durch den Begünstigten. Sie ist nicht von eigenen Leistungen des Empfängers abhängig, verpflichtet diesen aber mit der Wirkung im Rechtssinne zur Dankbarkeit, so dass eine Verletzung dieser Verpflichtung zur Verwirkung der ➝

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The constitutive elements of the process of grace are: the fact that one party is subject to the other because of some kind of guilt; the restoration of the relationship out of free will by the superior party through a constitutive act; the acceptance of the gift by the other party; and the obligation of the graced party to gratitude and good conduct.7 The granting of a status to someone has the structure of grace. Law of grace is present wherever a status that is granted to someone is a juridical one.8

These two types of law, “the obligating gift as grace and the claim as the carrying through of the reigning justice”9 are in a certain way opposites and independent of each other and cannot be reduced the one to the other. Yet, on the other hand, they are always both present in one way or another, in any given juridical system — as they certainly are in canon law. The obligations flowing from grace can be expressed in terms of claim of acknowledgment10 and law of grace is operating within the law of justice in the granting of membership in the


➝ Vergünstigung führt.” (I:178-179).
7 I:171-179.
8 Cf. the next paragraph for a more elaborate analysis of the process of granting a new juridical status.
9 “... die verpflichtende Gabe als Gnade und der Anspruch als Durchsetzung der herrschenden Gerechtigkeit ...” (I:207).
10 I:866; 908.

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juridical community and in the justification.11 In fact, they were clearly one until they were separated in the 12th and 13th century, after which the double reduction mentioned above took place. In legal philosophy and theology justice was reduced to justitia distributiva, clearly operating in a normative law of justice, and the justitia salutifera, active through grace, was forgotten.12

The working together of both types of law is clear in the role of the judge. The plaintiff, in bringing his case to court, not only claims his right, given by the law of justice, but appeals to the mercy of the judge and want to be graced with the status of victor.13 The justifying authority within the law of justice can be a system of normative law but it can also be the status-giving role of the judge. The judge in his decision-making can refer to his own charisma, in which case his status-giving role is most apparent, or he can refer to precedence or a normative legal system; but even in the latter case he has to interpret and adapt to particular circumstances. In any case the constitutive aspects of the judicial activity within the law of justice indicate aspects of law of


11 Dombois never clearly works out the relationship between the two and how they work together.
12 I:179-188.
13 I:170.

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grace.14

 

II. Personal and Transpersonal Institutions

Dombois has his own way of using the concept of institution which is quite different from the way it is usually used. First of all, he distinguishes between personal and transpersonal institutions. He defines a personal institution as “a dialectically structures happening in more than one action through which a person is put into a relationship with another person or a group of persons.”15 An institution, first and foremost, is an act and not the result of an act. The status-giving act is a free one, posited by someone in a superior position, and it has to be accepted. The action of instituting leads to a new status by bestowing on someone a typical form of relationship within the community which brings all kinds of claims and duties with it. There is, however, no exhaustive list of its juridical consequences and in part it can be adapted and shaped according to one’s preferences. The personal institutions are needed as models of behavior upon which people can build their


14 I:837; 844; 884-887.
15 “... ein mehraktiges, dialektisch strukturiertes Geschehen, durch welches eine Person einer anderen Person oder ein Personenverband zu- oder eingeordnet wird.” (III:18)

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relationships.16

Personal institutions presuppose a community as a third party, as a higher order that guarantees them; they have meaning not only for the people directly involved, but necessarily also for the whole community within which they function.17

Personal institutions are to be distinguished from transpersonal ones. The latter are rigid structures that clearly define the rights and duties of the people involved. Transpersonal institutions develop either from personal institutions by objectification through the process of detaching from the personal status of individuals and submitting to rigid (re)definitions of the juridical consequences of the institutions. The word institution is often used for the establishments that result from transpersonal institution.18


16 I:902-907; 910-913. As an example of a personal institution we can think of institution into marriage by the representative of the community or the institution to vassalage by the king. The way Dombois talks about personal institutions makes it clear that the process of grace as it was described above, can very easily be structured into the status-giving process of personal institutions. It will therefore not be peculiar that in Dombois’ view the giving of grace within the Church will be found in her personal institutions.
17 I:905-907. Dombois calls this aspect of institutions their Drittwirkung which I translate with “effect on third parties.”
18 I:916-919.

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Chapter 3

Theological Standpoint

 

I. Justification and Salvation.

The theology of justification behind Dombois’ theory concerning the fundaments of canon law is classically Lutheran.1 Man2 claims against God to have lordship over creation. He has not acknowledged God’s exclusive claim of lordship over man and creation and thus has committed sin. Now man has to stand trial before God, a trial which he


1 A more elaborate presentation of Dombois’ thinking on justification will follow in Chapter 4, Paragraph V.
2 Unfortunately English doesn’t have a non-sexist translation for the German neutral word Mensch. The disadvantage of using the word “mankind” as translation is that mankind is a collective concept whereas the word Mensch — as well as the word man, for that matter — can have either a collective or an individual meaning. To keep the text legible and to stay as close to the German text and to Dombois’ train of thought as possible, I will have to use “man” as a translation for the term.

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necessarily will lose. God, however, fulfills man’s duty vicariously through the Son: Jesus Christ brings to the Father through his sacrifice on the cross the obedience which man owed to God. By fulfilling God’s claim, the Son — and through him God’s own love — does justice. Through acceptance of Christ’s death for man, he can be justified before God and survive the trial; this acceptance has to start with the admission that one is a sinner.3

Dombois strongly denies that the traditional teaching on justification through faith leads to the position that justification is an individual act and that becoming a member of the Church is a subsequent act. In his view justification is not simply an individual act; rather, incorporation into the Church is a constitutive part of the process.4

 

II. Anthropology.

Dombois sees the human being as essentially part of a social structure. Without a community we cannot live. This becomes more concrete in our need not only of a social environment but also of a structuring of that milieu. This structuring takes place first and foremost


3 I:139; 286-287; 190; III:21.
4 I:251; III:27. Cf. Chapter 4. Paragraph V in which this aspect of Dombois’ reasoning will be worked out.

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in institutions, understood in the sense of personal institutions: social relationships, which are necessary for human beings, will take shape through the process of institutions, which refer these human beings to already existing models of relationship. Dombois calls this need for institutions our “institutionality”, thus indicating that law belongs essentially to human beings.5 At least law of grace, which manifests itself through personal institutions, is always present in human society.6 Concentrating on human beings as individuals since the 12th and 13th century has drawn attention away from community and human institutionality and has fostered the reduction of law to normative law.7

 

III. Ecclesiology.

a. Church as institution.

According to Dombois, the Church is not just an ideal human society, the example for the world from within with which the world could coincide once it transforms itself — or is transformed — into a just and loving community. The Church has her foundation in God’s grace: she has her guiding principles in the acts of Christ, his mission and


5 I:925; III:23.
6 I:26.
7 I:453-456.

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his sacrifice, upon which the mission of the disciples and the calling of the new people of God follow; and she has the structure of communio sanctorum. In short, the Church is totally different from a human society or association which is human-made by the free joining up of human beings into a social structure.8 She also is not the result of a freely coming together of human beings that have come to a new spiritual existence through salvific grace; she is communio sanctorum not congregatio sanctorum. The Church is prior to the individual christian.9

Looking at the Church as institution does not mean subsuming her under a sociological or juridical category but looking at her legitimate structure, which is the life-giving process of institution to Child-of-God-and-belonging-to-Christ. Human beings cannot acquire the status of persons before God on their own.10 Justification and acquiring legitimate existence before God require


8 I:57; III:317; 319-320.
9 I:25; 38; 74; 79. Dombois’ view that justification is a process within the community of the Church and not something which happens to an individual on his own, is not readily acceptable to Lutheran thinking. The full understanding of how he sees justification and incorporation into the Church as one process can only become clear when we will address the juridical interpretation of theological categories. Cf. therefor Chapter 4, Paragraph V and Chapter 5, Paragraph III.
10 If anything, the institutionality of human beings brings with it the requirement that salvation, which addresses human beings as a totality, comes together in a personal institutional form.

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partaking in the institution of the Church. “The Church herself is institution in as much as she herself as soma Christou is the place and the totality of the processes of personal institution, through which human beings are incorporated into the Body of Christ and are put at their place of service within it.”11 She is process, grace. She is the result of God’s grace, God’s giving of Himself. The Church “is founded upon nothing else but the law of grace of baptism, in which Christ has given us community with Him and with each other.”12 Her opus proprium, the essential actions in which she expresses herself, are personal institutional processes like the sacraments through which she institutes human beings into this process of God’s Self-giving.13

The Church should not be reduced to only personal institutions. She needs functional forms and therefore transpersonal institutions also. But the primary structures of the personal institutions are the more important: they are God made, whereas the transpersonal


11 “Die Kirche ist insoferne Institution als sie selbst als soma Christou der Raum und der Inbegriff personaler Institutionsvorgänge ist, durch welche Menschen dem Leibe Christi zugeordnet und in ihm an den Ort ihres Dienstes gestellt werden.” (I:920).
12 “... beruht auf nichts anderes als dem Gnadenrecht der Taufe, in welcher Christus uns Gemeinschaft mit ihm und untereinander geschenkt hat.” (I:326).
13 I:894-902; 920-921; 924-925. The details of this process will be the subject-matter of Chapter 4.

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institutions are human-made. The diversification of different confessional churches14 has to do with overemphasizing one or more of the essential elements of the Church and giving it or them transpersonal institutional form. This diversification and this overemphasizing create the transpersonal institutional conditions for the becoming or being a Christian. The process of becoming a Christian, however, is the personal institutional process that alone really matters. The actions of the Church that are the personal institutions are the common roots of all the churches and form the objective limitations of the transpersonal institutions as well as the foundation of a general, ecumenical canon law.15


14 See Chapter 1, Paragraph II.
15 I:927-930; II:172-177. Dombois dedicates enormous parts of his work to analyzing the different confessional churches and their history to prove this point and to show which institutions are in fact secondary transpersonal institutions, e.g. II:103-172; 179-181. He calls the canon law which is based upon these institutions transcendental canon law. Transcendental canon law deals with the transcendental conditions of becoming a Christian and leading a Christian life within a particular confessional church, e.g. the submission to the authority of the pope in the Catholic Church, coming from the overemphasizing of the essential element of the unity of the Church. It does not directly deal with the primary forms of Christian life that are found in the primary institutions. Dombois is not interested in developing the transcendental canon law because these canonical structures are proper to the individual confessional churches and not ecumenical and therefore do not bear upon Dombois’ attempt to develop an ecumenical canon law. Ecumenical canon law has to analyze the primary personal institutions that are present throughout the entire Church and in some — sometimes ➝

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The Church as an institution has to be concretized in the form of a constitution (Verfassung) which indicates the personal structure and the structure of competences. The primary forms are the local congregation which gathers for liturgy and the universal Church. The local congregation and the universal Church have equal dignity: the local congregations is not just a practical subdivision of the universal Church. The secondary forms are the particular church which unites several local communities for practical purposes and the religious order which forms communities expressing a certain distance from the world. These four constitutional forms are found throughout Church-history. The different confessional churches, again, have worked out the different elements differently.16

b. The Opus Proprium of the Church.

In Dombois’ view the existence of the Church does not precede her actions.17 He indicates

that the action of the Church that is incumbent upon her, her service and liturgy is not a secondary event, which only follows from her already present existence (operari


➝ only rudimentary — form in each of the confessional churches. By claiming universal meaning for their transcendental forms, the confessional churches can stand in the way of general canon law.
16 II:35-51; III:183-184; 266.
17 I:60; 693-694.

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sequitur esse), but is the carrying out, after attaining proper understanding of it, of the relationship itself that exists between the Lord, the disciples and the world. The Church constitutes and proves itself through this service. But the service is not from the outset without structure or shape. On the contrary, its shape is given with that relationship and therefore not changeable in its essential fundamental characteristics.18

The Church is not a gathering after the event of individuals who have had an individual religious experience of salvation. Jesus Christ’s commandment giving his disciples their mission19 creates the Church. He institutes His disciples as apostles and through them his claim to faith and love is directed not only to them but also through them to others. This process repeats itself over and over again, new disciples make new disciples and all are through salvific grace incorporated into the Body of Christ and given their place and function in it.20


18 “... dass das gebotene Handeln der Kirche, ihr Dienst und Gottesdienst keine sekundäre Veranstaltung ist, die erst aus ihrer an sich vorhandenen Existenz folgt (operari sequitur esse), sondern der Vollzug des recht verstandenen Verhältnisses selbst is, in welchem Herr, Jünger und Welt stehen. Durch diesen Dienst konstituiert und bewährt sich die Kirche. Aber er ist von vornherein nicht strukturlos, nicht gestaltlos. Seine Gestalt ist vielmehr mit jenem Verhältnis mitgegeben und deshalb in den wesentlichen Grundzügen nicht veränderbar.” (I:375).
19 Dombois calls this Missionsgebot, which I will translate with “mission-commandment”. Sometimes he uses both Missionsgebot and Wiederholungsgebot (commandment to repeat) to indicate Jesus’ commandment to His disciples to preach and to administer the sacraments. When I will use “mission-commandment” I will mean both aspects of Jesus’ mandate to his disciples.
20 I:282-286; 290-296.

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What exactly are the actions of the Church that in fact are the actions of Christ through which He still actively works? Most of the time Dombois mentions liturgy, i.e. teaching and preaching the Word (Verkündigung)21 followed by profession of faith22 and the sacraments.23 Man is, by


21 I translate Verkündigung consistently with “preaching”; the German word connotes more than the preaching within liturgy and also indicates the preaching of the Word to non-believers and catechumens.
22 Preaching and teaching in and of themselves do not make the Lord present, but do so in their consequence, namely when they are accepted in the profession of faith. (I:604)
23 Dombois is not always consistent in using the word liturgy. Sometimes he uses it to indicate the sacraments stricto sensu, sometimes he uses it in a broad sense, including preaching and teaching the Word followed by profession of faith. Early in the first volume he quotes Karl Barth who calls the profession of faith a liturgical action (liturgisches Geschehen). (I:43)
Dombois seems to refer to other essential actions of the Church that are institutional actions of Christ beyond liturgy in the broad sense, when he refers to the tres munera Ecclesiae. He only mentions the three munera very briefly in the first volume of “Das Recht der Gnade” (I:242; 244; 275, note 14) and more extensively in the third (III:349-354; 410-415). His treatment of the subject-matter, however, is quite short and not very clear. He assigns the different actions of the Church to the different munera as follows: the munus regale encompasses Church order, i.e. all the decisions that involve personal institution to membership in the Church or official ministry and mission; assigned to the munus propheticum are preaching, teaching and charity; and to the munus sacerdotale are assigned the Eucharistic worship and the power of the keys (III:410-415).
Although this way of interpreting the traditional teaching of the three munera can be questioned, we do not need to get into further detail. The only aspect that is important for our purposes is that Dombois mentions other essential actions of the Church in addition to those that are subsumed under his concept of liturgy in the broad sense. Although here he seems to mention jurisdictional decisions and charity as distinct from liturgy, I think that he treats jurisdiction in the rest of his work as the ➝

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his own powers, not capable of rendering service to God. The sacrifice of Christ, however, has built community between God and man and set him free and made him able, through imitation of Christ’s sacrifice, to give God back what He Himself has given. This sacrifice that imitates Christ’s sacrifice is gratias agere, i.e. thanksgiving, and, as such, it is the necessary acceptance of grace through faith which builds anew and reenforces the community between God and man. This sacrifice is what is meant by leiturgia.24


➝ decisional aspect of the administration of sacraments (the power of the keys) and therefore still under liturgy (cf. Chapter 4, Paragraphs VI-IX). I think, using more traditional Catholic terminology, it is doing justice to Dombois’ theory to say that it concentrates on liturgy as a coming together of the munus docendi and the munus sanctificandi and that the munus regendi is present in the jurisdictional aspects of the sacraments, which he does treat: the only action that is lacking elsewhere in his theory is the diakonia, which is certainly an essential action of the Church. In any case, in his attempt in the rest of “Das Recht der Gnade” to relate canon law and the essential actions of the Church, he only refers to liturgy in the broad sense. In presenting his theory I will have to follow him in that. To be consistent with his own remark that “canon law is the law of all the munera” (“Kirchenrecht ist das recht aller munera.” III:304) however, he should have reflected on the canonical implications of the other essential actions of the Church too, at least the diakonia.
24 I:219-224; 226; 228. Dombois, by talking about the necessity of the liturgical sacrifice, accords more value to liturgy than protestant thinking would, since it only sees commemoration in the Eucharist and refuses to accept that human action can add anything to God’s acts of grace. He refutes the latter position by taking up the Catholic thought that acceptance of grace is not an individual act but has to take place as a liturgy, a community-celebration and manifestation.

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The opening of liturgical gatherings by invoking the name of the Lord is an indication that the action is put under the domination of God, that it is worked by the Spirit and that the Word is present in it.25 “The verbal preaching of the Gospel and the real administration of the sacraments are two modes of one and the same Word of God which comes to us.”26 Preaching and sacraments belong together and form a unity.27 Because of the universality of the sacraments and the preaching of the Word throughout the Church we find here an ipso facto foundation for the unity of the churches.28


25 I:280-281; 363-366.
26 “Die verbale Verkündigung des Evangeliums und die reale Austeilung der Sakramente sind zwei Weisen ein- und desselben Wortes Gottes, welches zu uns kommt.” (I:410)
27 I:410-417.
28 III:183; 186.

Golde, H.M.G.J. van (1988) C4

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Chapter 4

Juridical Interpretation
of Theological Categories

 

I. Principle.

The main inspiring principle of Dombois’ typical theological analyses is that theology uses juridical categories and analogies.1 This goes back to the fact that the Gospel itself describes the relationship between God and man in juridical terms.2 To come to full understanding of these terms theology will have to take into account and analyse their juridical background and meaning.

It is not surprising that this is the fact since Gods’ relationship to the world and to man is only to be seen as


1 I:10.
2 I:90.

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a reign and is therefore in itself a reality which has to be thought about in terms of claim and acknowledgment and of grace.3 Furthermore, in this relationship God addresses man, who can only be fully addressed if his institutionality is included; the institutionality also leads to phenomena which are to be analyzed in the same terms.

A problem is that if theology studies juridical terms used in Scripture or theological tradition, it reflects upon them from the standpoint of identifying law with law of justice or even normative law, taking up the change in juridical theories since the 12th century. This becomes apparent in the limitation of its concept of justice to justitia distributiva and justitia commutativa which refer to law of justice, although the Christian concept of justice is first and foremost that of justitia salutifera for which grace and law are not opposites but come together in law of grace.4

 

II. Covenant and Testament.

Juridical actions are actions between two or more persons. This presupposes a community between the persons involved. This is true also for the juridical relationship between


3 I:124.
4 I:186; 188-189.

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God and man. Because of the fact that God and man are absolutely incomparable, the community that exist between them is called into existence by God. It is gift, grace. Man as receiver of this community is even not pre-existent to it but is created as such within the same act. The words that Holy Scriptures uses to indicate the community all express and emphasize tis. The Hebrew berith and the Greek diathêkê do not describe a pact or treaty between equal partners but a personal institutional act through which the less important party is given a part in the power of the more important one; this act obligates the former to gratitude and to certain obligations toward the latter. The Latin testamentum also emphasizes unilateral institution but not so much as heir or child of God — which are expressed with other words like hyothesia, which means adoption — but rather as a foundation5 the object of which is Jesus Christ and the beneficiary of which is man. He has to accept the gift before he receives the claims that go with it; this acceptance is acknowledging God’s claim on man.6


5 Foundation here means what the Code of Canon Law refers to as universitas rerum.
6 I:97-104; 107-108.

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III. Representation.

People who are not present to one another still can communicate through representation. Representative and represented are not equal, the former is subject to the latter. But still the representative has some liberty in fulfilling his duty and has to adapt his mandate to the particular circumstances and to the addressee. If the addressee does not acknowledge the representative as such, the mandate is still valid but has no effect.7

Representation plays a role in the sacraments which represent Christ’s actions and in the official ministers of the Church who represent Christ. The official ministers are instituted into their positions through an act of personal institution. In the way the official ministers fulfill their duty of representing Christ other juridical phenomena can be recognized like the institutions of messenger, herald, envoy or witness. Important is the institution of witness.

Witnesses are used on the one hand within trials to guarantee both the trustworthiness of one of the parties and the truth of certain statements, and on the other hand within the drafting of documents to guarantee the right tradition of the documents. In the same way the witnesses of Christ guarantee the trustworthiness of Christ, the


7 I:104-107.

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truth of His message and the right tradition of Holy Scripture. The theological usage of the concept of witness makes clear that the Church, which is the process of witnessing, and the Gospel, the message which is witnessed to, cannot be reduced to one another, just as representative and represented cannot be reduced to one another.8

 

IV. Work and Merit.

The relationship between God and man is not like a contract for work but like a labor contract. In a contract for work one is engaged to produce a product which will only be accepted and paid for if the product is according to the wishes of the contractor. The product man will deliver to God will always be deficient. In a labor-relationship one is paid for one’s best effort, regardless of the result of the labor. The employment relationship is also a personal relationship with free engagement on both sides. The way man is in service of God reflects the same aspects of rewarding regardless of the deficiency of the result of the labor and of not being a slave-relationship but one freely agreed upon by man. Man cannot merit anything from God — merit (Verdienst) being a concept related to work of contract — whatever He


8 I:114-122.

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gives us is His free gift, also the acknowledgment of our work.9 Merit does not bring God’s grace, but service.10

 

V. Justification and Grace.

The classical Lutheran way of understanding justification brings in the juridical notion of trial. Therefore it is obvious that to come to more precise understanding of how justification takes place juridical concepts and juridical analysis have to be used.

In a trial not only the truth of an alleged crime and its possible punishment are at stake but also the place of the accused within the juridical community. If one is found guilty one loses one’s juridical status within the community; the one who is acquitted is restored to full membership. Not just the fact that one is innocent is the foundation for renewed membership but also en even predominantly the acquitting sentence itself. This sheds light on the fact that man is not punished with death: it


9 To understand this well one must realize that this acknowledgment has become part of the ongoing relationship of grace — Gottesdienst, liturgy in the broad sense — and is not an act of God which is to be waited for in each individual case.
10 I:124-132; III:40. The German word for labor is Dienst, i.e. “service”. The word “service” is reflected by the word Gottesdienst. With the translation using the word “liturgy”, the reference to service and the juridical connotations that are mentioned here are unfortunately lost.

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is not so much based upon the non-existent innocence of man but upon God’s acquitting sentence itself that is the basis for his new status.11

God’s self-giving in the incarnation of His Son and the Son’s obedience unto death are attributed to man so as to make sure man will not be found guilty and punished. To understand the attribution of someone else’s action the juridical concept of intercession can be used. In intercession an innocent person intercedes for someone found guilty and pleads for the latter, identifying with that person; the execution of the punishment, then, would also hurt the one who intercedes and would therefore be unjust. Thereby the punishment is turned away from the guilty person because of the action of the innocent one. To be able to profit from the intercession the accused has to give up all claim to innocence and self-justification. The justification within the trial of man before God is therefore not going back to a restored old community but a new eschatological community, based upon the intercession and attribution of Christ’s merit.12

The acquitting of man which creates a relationship between God and man is not an individual happening but connects the individual with the universal Church with her realm of obligations and responsibilities. “Justification


11 III:41-42.
12 III:42-43; 45.

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connects ipso facto the affected one with all those who take part and will take part in the same identification.”13 Church is an integral existential part of the process and not just a possibility left to the justified man to take up or not. Community with Christ includes community with a concrete ecclesiastical community. Justification happens within the ecclesiastical community and at the same time incorporates into it.14

The social dimension of justification is not at all self-evident to Lutheran thinking. On the contrary, Church is seen by Lutherans as a post-factum gathering of Christians that beforehand — individually — have been saved through justification. Therefore it is apparent that this is a central and most important step in Dombois’ theory. Part of his reasoning in this context is to realize that justification is grace and that grace, being a juridical concept, has a distinct juridical meaning too.15

In the theological notion of grace many aspects of the juridical concept can be recognized. It is not an object but a process, the initiative for which comes from God, a


13 “Rechtfertigung verbindet ipso facto den Betroffenen mit allen, die an der gleichen Identifikation teilhaben und teilnehmen werden.” (III:46)
14 II:184-185; III:46-48.
15 Cf. Chapter 2, Paragraph I and Chapter 5, Paragraph III.

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superior power; it restores a broken relationship; it is not the result of merit on the part of the graced but of a free gift; it has to be accepted and then creates a personal relationship between God and man. With grace is also given the fact that it brings with it law of grace, i.e. the obligations toward the superior that are due out of gratitude. Since grace bringt a new status and is therefore clearly a personal institution — namely into being a child of God — it also has to have effect on third parties (Drittwirkung).16 Salvific grace, i.e. the grace that justification grants, therefore not only restores the relationship with God (restitutio coram Deo) but also institutes as member of the Church, the community within which the restitutio takes place.17

 

VI. Sacraments in General.

Sacraments are, according to Dombois, to be seen in terms of grace as a process. They are not objects that in fact are something else than what they look like. “In the sacramental action we are not met by something untrue,


16 Cf. Chapter 2, Paragraph II.
17 I:189-204; III:30; 37-40. It is deplorable that Dombois does not work out this pivotal point of his theory in a more clear and convincing way.

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rather by truth in the form of reality.”18 Sacraments do not communicate grace as an object outside of themselves, but in the sacraments the community between God and man takes place. “The sacraments bestow the new community of salvation upon man in a concrete fashion.”19 Jesus’ disciples and the official ministers of the Church are representing Christ when they administer the sacraments. Through the sacraments God’s self-giving in Christ is mediated concretely to a human being, which mediating can only be done within the Christian community.20

By looking at the juridical meaning of the word sacrament, the way in which sacraments mediate Christ’s sacrifice to man can be made clearer. Tertullian introduced the term sacramentum for the Greek mystêrion. Its original meaning in Roman Law is that of a pledge that had to be left at the temple at the beginning of a sacred lawsuit; the one who lost the lawsuit forfeited the pledge to the temple. The origin of this phenomenon was the fact that previously the one who falsely accused someone else in a sacred lawsuit had to pay with his life if the accusation was found to be untrue; later the pledge


18 “Im sakramentalen Geschehen begegnet uns nicht etwas Unwahres, vielmehr die Wahrheit in der Form der Wirklichkeit.” (III:297)
19 “Die Sakramente wenden die neue Heilsgemeinschaft konkret dem Menschen zu.” (I:244)
20 I:106-107; 191; 203; 238; 243-245; 468-469; III:64-66; 321.

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took the place of the accusor.

Another more recent meaning in Tertullian’s days was that of oath of enlistment. Probably this meaning came from the fact that the enlisting soldier would get a sacramentum from his superior which could be a sum of money as a first part of his pay; with this pledge the superior obligated himself to fulfill his part of the obligations that came with the military relationship between soldier and commander. It is the handing over of the sacramentum and the oath of enlistment — which was called sacramentum accipere — that brings the obligation into being, like in Roman law the handing over of an object brings about the real contracts.

In the process of salvation Christ gives himself as a pledge which will take the place of man who otherwise will lose his life in the trial before God; this makes Christ sacramentum in the first meaning. Through the sacraments this act of Christ is made present and again calls into being the eschatological relationship between God and man to which God obligated Himself: this refers to sacramentum in the second meaning.21

Originally sacramentum, like mystêrion, meant all the actions of the Church. After the 12th century the word was used in a restrictive way for certain signifying actions which went together with a concentration on what


21 I:132-139; 439; III:43-44.

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they meant for the individual.22 The Church has to concretize and shape the individual sacraments but cannot change their fundamental structure in which the communal and institutional aspects are essential.23

 

VI. Sacraments in Particular.

a. Baptism.

The sacrament of baptism, through which the grace of justification is directed to a concrete person, makes that person into a persona coram Deo and also into a member of the Church. Justification and the institutional action that creates community are one. “Baptism together with the forgiving of sins has to be understood as incorporation.”24 It is true that justification takes place through faith alone, but the act of faith is a process that is completed and realized in baptism, which identifies the baptismal candidate with Christ in His death and resurrection and makes the newly baptized take part in the kainê diathêkê, the New Covenant.25

Baptism is not a facultative sign of an inwardly


22 I:447-448; 460-462.
23 III:179-180; 300-301.
24 “Es muss die Taufe ... samt der Sündenvergebung als Inkorporation verstanden werden.” (I:524).
25 I:306-310; 524; III:54-56; 59-63.

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completed act of faith. The process of coming to faith goes through the stages of missionary preaching, the decision of the candidate to accept the faith, the decision to accept the person for baptism and the baptism itself. The decision to baptize is a jurisdictional26 decision about the presence of the working of the Holy Spirit in the candidate; if the decision is positive, baptism cannot be refused. When asked about it before the act of baptism, the candidate submits to God’s Lordship by professing the faith and thereby also confesses the sin of having wandered away from this Lordship. This is not entering into a contract with mutual rights and obligations but it is being instituted, i.e. accepting a change in status that brings about a community. The baptized is taken up into community with God; baptism is the pledge that expresses God’s self-obligation toward this community as answer to the self-giving of the baptized.27

Baptism and profession of faith normally belong together. But the old tradition of baptizing infants still exists and in addition it is possible that someone is baptized although the inner act of faith is lacking.


26 The concept of jurisdiction refers to the fact that some actions in the church need an official minister because they have a direct influence on the status of a person within the community. Cf. Paragraph IX.
27 I:238; 296-306; 310-319.

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First of all we have to realize that the practice of baptizing infants comes from sociological circumstances that brought with them the fact that conversion was seen as an act of a family or a group in which the infants participated. Infant baptism and adult baptism that was not be preceded by an act of personal faith were to be followed by it. But still, it is the act of baptism that brings about the membership in the Church even if the personal act of faith does not follow. This is clear from the fact that the baptism can be realized by the personal faith of the merely baptized at any time without the necessity of repeating baptism. Therefore any baptized person has an absolute claim to mutual acknowledgement as Christian in the universal Church.28

b. Confirmation.

Baptism give full membership in the Church and gives full rights to receive the sacraments, e.g. the Eucharist. The fact that infant baptism has to be followed by catechesis is an obligation which follows from baptism itself. It might be conceivable that an older age would be required for full active rights in the community, e.g. to be a godparent, but not an extra sacrament like confirmation. Mission to be an active Christian in a concrete way has to be given and accepted in a conscious way; confirmation as


28 I:320-325; 328-332; II:195; III:66-67.

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a kind of blessing could be developed to be such a mission, but the sacramental requirement can only be the one of baptism which gives full membership in the Church.29

c. Eucharist.

The Eucharistic celebration “is the place where the community with the Lord through the hand of the one who acts finds its most dense realization.”30 It needs a presider who represents Christ. The presider’s role is not just functional, he also has to make jurisdictional decisions as to who belongs to the community and is allowed to partake in the Eucharist and who does not. “Baptism grounds membership in the body of Christ, the Eucharist presupposed and renews it.”31 This is how the power of the keys32 plays a role in the eucharist, too.


29 I:340-353.
30 “... ist der Ort, wo die Gemeinschaft mit dem Herrn durch die Hand des Handelnden ihre dichteste Verwirklichung findet.” (I:604)
31 “Die Taufe begründet die Gliedschaft am Leibe Christi, das Abendmahl setzt sie voraus und erneuert sie.” (III:45)
32 With the concept of the power of the keys Dombois indicates the fact that the one who is asked to administer a sacrament has the power and the task to make the jurisdictional decision to admit someone to that sacrament or not. The concept therefore not only refers to the sacrament of reconciliation. Implicitly granting or refusal of any sacrament is a decision about the person’s position within the community, which does not necessarily reflect the fact of being justified by God or not. (I:973; 979-980) Cf. Paragraph IX.

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Furthermore, the Holy Spirit is working in the coming together of the community. Despite the development of the private mass,33 it has to be said that the Eucharist cannot be separated from the congregation.34

d. Marriage.

Marriage is certainly not linked up with salvation in the way baptism and Eucharist are. It is an image of God’s relationship with the Church. The protestant churches question whether marriage is a sacrament. Whether one sees it as a sacrament or not depends upon one’s definition of sacrament. In any case “marriage is not a private contract between two isolated individual persons, but at all times it has been and still is in a mutual relationship with a bigger social entity, which gives it foundation and a public character.”35 The ecclesiastical community has to make the jurisdictional decision about the eligibility of two people who intend to marry before it can allow them to do so. The decision checks the


33 This development during the Middle Ages is another sign of the reduction of the sacraments to objects which can be given by the official ministers to the faithful instead of understanding them as actions, instituting processes which involve the community as a whole. (I:376-383)
34 I:367-368; 384-398; 603-604.
35 “Die Ehe ist nicht ein Privatvertrag zwischen zwei isolierten Einzelpersonen, sondern steht von jeher bis heute in Wechselbeziehung zu einem sozialen Grossverband, der sie trägt und ihr Character der Öffentlichkeit verleiht.” (I:655-656)

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absence of marriage impediments and the presence of readiness to live up to God’s commandments. The cooperation of the Church has to do with the public character of the marriage and the fact that the Holy Spirit is believed to have brought the two together. Divine and human institutional action come together.36

e. Ordination.

The ritual of ordination has three elements which we can find through analysis of the ordination rituals in the different confessional churches, although not every confessional church will have all three of them. The first element is a reference to an act of election to the ordination, either by the community or the ordaining official minister. The second element is a reference to the working of the Holy Spirit, like the imposition of hands. The third element is the conferral of an ecclesiastical office.37

Election38 by the community belonged to ordination in the old Church, but the election was not an arbitrary process; rather it was the judgment of the community about


36 I:628-634; 641-644; 647-650; 659-670; 971.
37 I:495-512; 559-565.
38 Dombois often calls this “vocation”, thereby not in the first place referring to the inner experience of the candidate, although this also plays into this element since the election is a discernment about the working of the Holy Spirit.

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the question whether or not a candidate for ordination was called by God. The development of absolute ordination made the election by a community impossible, so that the role of election, giving a jurisdictional decision about the working of the Holy Spirit in the candidate, had to be taken over by the ordaining official minister. It is the proper right and duty of the Church to choose its candidates for ordination, since this choosing is a process of discernment which cannot be entrusted to an authority outside of the Church, e.g. the civil authority.39

Through ordination the Spirit is given. God is free to give His presence or not, but since He has promised His Spirit when the Church prays to Him in the faith that He will grant His Spirit, the action of the ordaining minister grants the Spirit to the ordained. The Spirit is the Spirit of leadership in the community and the Spirit of unity that connects with the universal Church. The imposition of hands by the ordaining minister brings together both the representation of the community and the representation of the universal Church.40

Although they are separated from one another by the development of absolute ordination — strictly forbidden by the Council of Chalcedon — ordination and office belong together. The process of ordination is completed in the


39 I:483-484; 488-490; 560-561; III:109.
40 I:479-480; 772-776; 788.

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conferral of an office. Public functioning as an ordained minister is possible only after receiving a mission, another jurisdictional decision.41

Since ordination is ordination to a service to the community that represents Christ, the notion of the priesthood of the faithful is not a helpful concept. Every confessional church needs and indeed has some sort of ordination to that service.42 Therefore, together with baptism and eucharist, ordination is a universal institution.43

f. Reconciliation.

Sin separates the sinner from the community of Christ. The official jurisdictional decision can be made to excommunicate the sinner in order to keep the community clean. The excommunication is undertaken by mandate and representation of Christ by the official minister on account of that minister’s power of the keys.

If the individual Christian confesses his sins only secretly before God, there is no administration of grace to that sinner by the community through another human being:


41 I:548-553; 567; 578-89.
42 Dombois calls this aspect of representation of Christ within the community the necessary “facing” (Gegenüber) of the community. Cf. Paragraph IX.
43 II:156-157; III:266-267; 325-328. Cf. also Paragraph IX.

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furthermore the social dimension of sin is not regarded. One cannot do for oneself things that are essential for one’s position within the Church. To be reintegrated into the community the sinner has to confess his sins and has to be absolved from them and incorporated again into the community. This is an official jurisdictional decision also. The whole process is an institutional one which has to be undertaken by an official minister in the community, who has the power of the keys. Through absolution the Word and God’s justice are made concrete for a specific individual and his place within the community is thus determined.44

g. Sacrament of the Sick.

The sacrament of the sick has developed from being a communal act of healing on both a physical and a spiritual level. Being a sort of blessing, its character is close to that of confirmation. In the course of its development, however, it acquired an element of reconciliation. Therefore it is reserved to the official minister who can make a jurisdictional decision on account of having the power of the keys.45


44 I:293-296; 601; 732-739; 741-755; 757-759; 973; III:151.
45 I:762-767.

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VIII. Preaching and Profession of Faith.

Preaching the Word is a follow-up of the mission-commandment of Christ: it is done by mandate and in representation of Christ. It can be addressed either to non-baptized people, challenging and calling for an act of faith on the part of the listener, or to baptized people. The function of preaching, especially when done within the liturgy, includes a jurisdictional element, since it functions to congregate, integrate and lead the community and also to point out sin and thereby exclude the sinner from the community. Therefore, although every Christian is called to proclaim the Word, the official preaching has to be entrusted to an official minister.46

When God’s word is directed to man, it has to be acknowledged and it claims this acknowledgment. The acknowledgment is the profession of faith which makes man God’s partner. The profession of faith47 acknowledges God’s Lordship over the world and accepts the New Covenant in Christ’s death on the cross. The profession of faith bears witness to the community that was founded by God. It takes place within liturgy and is part of the liturgical-sacramental action of the Church. The subject of the


46 I:368-374; 602.
47 Profession of faith doesn’t mean the (objective) creed but the act of professing the faith within liturgy (I:55-56)

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profession of faith is not the individual but the Church. The confessing Christian only exists as such within the community.48

The liturgical profession of faith is made to God, but at the same time it can address man when it is meant to be missionary, or it can address heretics when it is meant to be dogmatic. These three aspects belong together and all three are present when a creed as an official profession of faith is formulated. Because of its communal character a creed has to be received by the universal Church. Traditionally only by a jurisdictional decision of an ecumenical council could a creed that is binding for all be formulated, since, through its dogmatic aspect, it had an excluding function toward heresy and heretics.49

 

IX. Office.

Dombois emphasizes that “the office in the Church is not simply a function and a product of the community but always stands independently facing it.”50 The juridical institutional structure of grace makes clear that the Church needs official ministers to grant grace through her


48 I:677-687.
49 I:696-714.
50 “... das Amt nicht einfach Funktion und Hervorbringung der Gemeinde ist, sondern ihr immer auch eigenständig gegenübersteht.” (I:70-71)

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institutional actions. Christ commanded His disciples to perform specific salvific actions to others, which action one cannot perform for oneself. Granting justification to someone is representing God’s self-giving in Christ to that concrete person, and it has to be done by another concrete person within the context of a Christian community and in the form of incorporation into that community. Christ is the one who really is acting in this process and He does so through the representation by the official minister. The decisions about incorporation into the community and, if necessary, reconciliation with it are jurisdictional decisions that — normally — have to be made by official ministers who “face” the community and vicariously act vice Christi.51

Leading the Church occurs through preaching52 and through administering the sacraments. Both are institutional actions of the Church that grant grace. They belong together: preaching takes place in a sacramental context and sacraments need the explaining Word of the Gospel. There is a dialectical relationship between the two that can be illustrated by the fact that initial preaching announces God’s forgiveness; the sacrament of baptism grants the new institution by


51 I:192; 237-239; 243-244; 252-259; 439; 605-606; 612-613; III:144-145; 361-362; 398; 411.
52 From here on I use “preaching” to indicate both preaching and profession of faith as its acceptance.

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incorporating into the Church; the preaching after baptism prevents one from falling out of the community; and the Eucharist and reconciliation preserve membership in the community. All these actions refer to representation of Christ and His mission-commandment, i.e. all of them have a jurisdictional aspect so that all of them need to be undertaken by an official minister.53

The fact that there are official ministers in the Church does not deny that the Spirit gives his special gifts to every Christian, which charismata enable then for and charge them with a concrete service to the community. The gifts of the Spirit are different for each Christian. The priesthood of the faithful can be understood as the fact that every Christian is called to a specific service. In talking about the official ministers in the community, however, we are referring to the gift of leadership, the special calling to represent Christ as a “facing” (Gegenüber) of the community. The official ministry has as main aspects preaching the Word and administering the sacraments, but it also may include leading the liturgy as a primus inter pares and diaconal service. If they are not functioning in a leadership role, the official ministers are acting in non-official services to the community.54


53 I:263-264; 398; 404-409; 418-241; 424; 691; 760-761; III:66-67; 258-259; 274, nt. 11.
54 I:247-252; 259-262.

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The office has a particular and a universal aspect. It both gathers the local community as such and connects the local community with the universal Church. Through the official minister the universal Church is present in the local community. All the official ministers and their communities are founded upon the presence of the Lord and the working of the Holy Spirit. This means that there is a fundamental equality amongst the official ministers, but also that full legitimacy can only be attained by and official minister who is in community with the universal Church.55

The Father sent the Son and the Son sent the apostles and through them the official ministers within the community to represent Him. The individual ecclesiastical community therefore does not give itself its offices and official ministers, but they come from the traditio of the Holy Spirit who is the one who actually calls both the universal Church and the individual community into being. Just as the congregated local community must exist within the universal Church, so also must its official ministers refer to the universal Church. Apostolic succession which legitimates official ministry means that the offices and the official ministers represent the universal Church, i.e. the community of churches in the individual ecclesiastical


55 III:156-163; 191-192; 201-202.

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community.56 It is a combination of personal sacramental mandate through ordination and kerygmatic jurisdictional57 mandate through fidelity to the tradition of the Gospel, i.e. the apostolic teaching. The sign of an unbroken line of imposition of hands, part of the sacramental mandate which refers to the unity of the Church, cannot take the place of subjection, every time anew, to the teaching of the apostles. Both personal sacramental mandate and the apostolic teaching have to be handed down to the official minister to guarantee the


56 An example of this is to be found in the fact that in the Catholic Church a bishop is normally ordained by three bishops as representatives of the universal Church and that in the protestant churches the ordination or installation of a new minister is usually done by several neighboring pastors.
57 Dombois links jurisdiction up with kerygma in the sense of the right apostolic teaching. In the light of what is said in Paragraph VIII, I presume that apostolic teaching here means the Christian teaching that the confessional churches agree upon, which would come down to the important creeds of the ecumenical councils. Because of the links Dombois sees between jurisdiction and apostolic tradition, in his opinion, heretics can have apostolic succession on a sacramental level and can celebrate the sacraments validly, although, being separated from the apostolic teaching, they lack jurisdictional succession (I:781-782). Accepting this link would mean that the authority to make the jurisdictional decisions that have to be made in administering the sacraments and in preaching, depends on the doctrinal position of the minister. It is, according to Dombois, only after the 11th century that the working of the Holy Spirit is considered to be present only if certain regulations — of transcendental canon law — are observed; and this view leads to a mor rigid understanding of jurisdiction and a linking of it with legitimation by the Pope who grants jurisdiction to the bishops who grant jurisdiction to their priests (II:118-119).

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apostolic tradition.58


58 I:524-525; 773-779; 784; 789-802; 808-809. The Catholic Church emphasizes the need of valid sacramental ordination for the existence of apostolic succession; the protestant churches, on the other hand, emphasize the need of handing down the true apostolic teaching (successio est evangelium).

Golde, H.M.G.J. van (1988) C5

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Chapter 5

Canon Law is Law of Grace

 

I. Canon Law is Part of the Essence of the Church.

Dombois refuses the position taken by Sohm and many of his followers that canon law and Church are not compatible. According to Sohm’s position, which prevailed in the Lutheran Church, the juridical order that the Church needs because it is a human society comes from the outside.1 The state provides for this canon law, which Dombois calls additive law, by providing for juridical regulations of Church-state relationships. Part of this canon law will be the civil corporation law applied to the corporation “Church” which does leave some self-regulation to the members of the Church. The first and most important


1 That the order actually came from the outside, was clearly the case in the German Empire until the end of the First World War. Cf. Chapter 1, note 4.

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objection to this positivism comes from the fact that the justified Christian does not precede the Church and that the Church is not a free association of Christians but an essential part of the process of justification.2

Another way of looking at canon law is to regard it as consecutive law. According to this view, on the one hand it is accepted that becoming a member of the Church is essential to being a christian, but on the other hand the members of the Church are free to shape canon law according to their insights into what the Church is, i.e. according to their concept of Church. The existence of the Church is placed before her actions, so that canon law is not connected with the actions of the Church.3

Dombois sees canon law as constitutive law. Canon law is part of the institutional actions that both justify the Christian and constitute the church. Canon law follows from the essential actions, the opus proprium of the Church, and it is therefore part of the Church’s essence.4 “The dimension of law is by institution part of the Church so that it cannot be imagined to be absent.”5


2 I:9-10; 83 nt. 12; 22-31; 52.
3 I:30-38; 53; 60.
4 I:873; 880; 888; III:113.
5 “Die Dimension des Rechts ist der Kirche eingestiftet, so dass sie aus ihr nicht weggedacht werden kann.” (I:13)

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II. Canon Law and Grace.

The essential actions in the Church are the realization of grace (geschehende Gnade). Grace is the covenant between God and man by which community between God and man is created. God’s claim is that man allow himself to be given grace. The acceptance of grace includes: the acknowledgment of God’s lordship and of one’s being a sinner in need of grace, and the acceptance of Christ’s self-giving in death instead of man. Because of God’s incarnation in Jesus Christ, it is now possible that, by virtue of Christ’s mandate and representing Him, one human being can influence the relationship with God of another human being through preaching and sacrament. Not everything is done by the one sacrifice of Christ; his work has to be completed. Through the service of the Church, God’s actions of grace in liturgy in the broad sense can reach other people. The jurisdictional structure of grace is that of institution, namely of institution into community with God as well as into the Church. Community with God is not an individual affair but takes place within the community of the Church. The institutional actions of the Church are sacraments and preaching.6

Canon law is the law that governs the legitimacy of these institutional actions of the Church. As such it is


6 I:90-91; 94-95; 97-102; 168-169; 211-216; 282-286; 893.

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part of the process of grace. Dombois sums it up as follows:

Canon law is about the foundation and maintaining of spiritual existence, about new existence coram deo. It is the totality of (juridical) processes in which God uses man to make His law of grace that founds existence, become effective in the world. ... This positive determination of the existence of human beings through law is grace. But again canon law is not about grace, but about the recommended giving of grace: it does not treat of the condition of the Christian, but of the Christian that is to be instituted; it treats of the building up of the body of Christ, of the oikodomê.7

He says elsewhere:

Canon law is about the way in which a Christian becomes a Christian, the way in which the body of Christ can be built up as a contrast to the world. ... Canon law is not at all interested in the individual existence of human beings, but in the task and mandate by virtue of which human beings can serve God in building up the Church.8


7 “Das Kirchenrecht handelt von der Begründung und Erhaltung geistlicher Existenz, einer neuen Existenz coram deo. Es ist der Inbegriff der (Rechts-)Vorgänge, in denen sich Gott der Menschen bedient, um sein existenzbegründendes Gnadenrecht inmitten der Welt wirksam werden zu lassen. ... Diese positive Existenzbestimmung des Menschen im Recht ist die Gnade. Aber wiederum handelt das Kirchenrecht nicht von der Gnade, sondern von der anbefohlenen Begnadigung: es handelt nicht vom Stand des Christen, sondern von dem zu instituierenden Christen; von der Auferbauung des Leibes Christi, von der oikodomê.” (I:80-81)
8 “Im Kirchenrecht geht es aber darum, wie der Christ überhaupt zum Christen wird, wie der Leib Christi als solcher im Gegensatz zur Welt auferbaut wird. ... Das Kirchenrecht interessiert sich überhaupt nicht für die Individualexistenz des Menschen, sondern um den Auftrag und die Vollmacht allein, vermöge deren Menschen Gott zur Auferbauung der Kirche dienstbar werden.” (I:78-79)

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Dombois thus emphasizes the process character and the institutional character of grace and consequently of canon law. Canon law governs the way Christ’s mandate to the Church to hand down justifying grace by incorporation into her community takes place; therefore it has the structure of law of grace although the subjects of this process are quite different from those in civil law.9

Canon law is first and foremost law of grace, concerned as it is with the status of the members of the Church. One of the consequences of being law of grace is that there is no other way to enforce it than to change the status of persons, e.g. excommunication. Of course law of grace is as much law as law of justice is.10 Yet canon law in many churches has developed into normative law, although it is often mitigated by the system of dispensations.11

The juridical dimension of relationships between two parties always exists in the fact that they have effects on third parties (Drittwirkung). These third parties play a role in the coming into existence of these relationship as juridical ones.12 The same is true for the relationship between God and a human being. “What happens between God


9 I:14; 50; 80-81; 108; 206; 893; 922-924; 976-977.
10 Cf. Chapter 2, Paragraph I.
11 I:216-218; 874-884; 892; 995-996.
12 Cf. Chapter 2, Paragraph I.

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and the faithful grounds at the same time a relationship to the neighbor.”13 The difference between canon law and civil law is the following:

Canon law has another point of view than civil law. Canon law is not concerned with the justification of human claims against human beings: it is concerned with the claim of God alone and exclusively — and only on the basis of that claim with juridical relationships between human beings. It is about what has to be done, according to God’s claim and as God’s claim, necessarily by human beings whom He uses for this purpose.14

The fact that canon law is law of grace and rules institutions means that it creates juridical relationships between the people that are instituted. These juridical relationships can be expressed in terms of claim and acknowledgment.15


13 “Was zwischen Gott und dem Glaubenden geschieht, begründet zugleich ein Verhältnis zum Nächsten.” (I:94)
14 “Das Kirchenrecht hat eine andere Blickrichtung als das weltliche Recht. Hier geht es nicht um die Rechtfertigung menschlicher Ansprüche gegenüber Menschen: hier geht es um den Anspruch Gottes ganz allein und mit voller Ausschliesslichkeit — und erst auf der Grundlage dessen um Rechtsbeziehungen zwischen Menschen. Es handelt sich um das, was nach Gottes Anspruch und als Gottes Anspruch zu geschehen hat, notwendig durch Menschen, deren er sich hierzu bedient.” (I:211)
15 I:91-93; 149; 771; 866-868. It is unfortunate that Dombois concentrates so much on the institutional aspect of canon law that he does not elaborate on this aspect of his theory which could give more insight into what ecumenical canon law could have to say about the concrete structures of the Church and the individual confessional churches.

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III. Canon Law as Liturgical and Confessing Law.

One of the central ideas of Dombois’ theology of canon law is that “the law of the Church is identical with the process that constitutes her.”16 This identity means that one has to study the opus proprium of the Church to discover her law. The first forms of this action are those of traditio, i.e. the process of God’s self-giving to man, and receptio, i.e. the process of accepting this gift. Traditio takes place through human beings as mandated by God Himself through preaching and sacraments, which both belong together. The preaching and the sacraments have to be accepted, which receptio takes place through liturgy and profession of faith. Therefore, canon law which is part of the constitutive opus proprium of the Church, can be called liturgical and confessing law (liturgisches und bekennendes Recht).17 “Canon law is liturgy of which the legitimacy is checked.”18 For all of canon law it is true that it is developed from liturgy in


16 “Das Recht der Kirche ist identisch mit der sie konstituierenden Vollzüge.” (I:35)
17 Dombois takes this idea from Karl Barth who first used the terms. Dombois seems to be inspired by his thoughts but, of course, works it out in his own way (I:40-43). Because he often uses the word liturgy in a broad sense, including preaching and profession of faith, he also uses the word liturgical law to indicate the entire canon law, both liturgical and confessing law.
18 “Kirchenrecht ist auf ihre Legitimität geprüfte Liturgie.” (I:52)

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the broad sense:

The formal principle of every Church order and all canon law is the commanded liturgical action. Its material principle is the always different understanding of this commandment. Every historical form of canon law can be reduced to a certain understanding of liturgy; changes in canon law reflect changes in liturgy. ... The factual history of the Church is the history of her liturgy.19

Thus canon law is much more than liturgical law that regulates the proper performance of liturgical actions. Canon law gives its order to the Church starting from liturgy; it can be developed from analysis of liturgy; and it gives order to the liturgy itself.20

In both preaching and the sacraments a jurisdictional element can be pointed out. Jurisdictional decisions settle juridical questions concerning whether a spiritual action should take place or not, i.e. whether to preach, to adapt the profession of faith to dogmatic questions, to administer the sacraments, to perform certain actions of office, to appoint to an office, to install in office and


19 “Das Formalprinzip aller Kirchenordnung und alles Kirchenrechtes ist das gebotene gottesdienstliche Handeln. Ihr Materialprinzip ist das jeweils unterschiedliche Verständnis dieses Auftrages. Jede geschichtliche Kirchenrechtsgestaltung lässt sich au ein bestimmtes Gottesdienstverhältnis zurückführen; Wandlungen des Kirchenrechts zeigen Wandlungen des Gottesdienstes auf. ... Die Realgeschichte der Kirche ist die Geschichte ihres Gottesdienstes.” (I:998-999)
20 This very important part of Dombois’ theory is mentioned in many different places throughout his work but especially in the first volume: I:35, 40-49; 51-53; 60-61; 77-79; 280-281; 354-355, note 8; 682; 694; 696; 811-831; II:219; III:274, nt. 11.

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to remove from office. The jurisdictional decisions being dependent on the discernment of the working of the Holy Spirit, are not predictable according to unbreakable laws of normative law; they belong to canon law which is law of grace. Canon law has to indicate who has jurisdiction, who can make binding decisions, or else the Church would not be able to perform her opus proprium. The constitution of the Church that canon law provides indicates the structure of competencies. Thus liturgical and confessing law are connected in the one office that unites ordination and jurisdiction in itself. The official minister makes the necessary jurisdictional decision about both sacraments and profession of faith. Canon law therefore could be called the law of the pastoral office, the office of jurisdictional leadership.21


21 I:689-690; 755; 761; 836-844; 846-853; 861-864; III: 117-119; 331; 412-413.

Golde, H.M.G.J. van (1988) Conc

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Conclusion

 

Dombois himself summarizes the efforts of his theoretical analysis as follows:

It is the thesis of this book that canon law has to ask about the juridical understanding, expression and constitution of the legitimate actions in the Church. In the search for appropriate juridical concepts, the juridical processes of acknowledgment of claims and of grace proved to be existential fundamental forms in which this spiritual happening takes place. The process of grace also proved to be the material foundation of the process of institution, but also linked up in a peculiar way with claim and acknowledgment.1

An important conclusion to be drawn from Dombois’ analysis is that the point in which the communal aspect of the Church’s actions is concentrated is the decision of the official minister that every action presupposes. It is through the official minister that the ecclesiastical community becomes capable of being an instrument of God’s grace. In the official minister the Church and the


1 “Es ist die These dieses Buches, dass das Kirchenrecht nach dem rechtlichen Verständnis, Ausdruck und Verfassung des legitimen Geschehens der Kirche zu fragen hat. Auf der Suche nach angemessenen Rechtsbegriffen zeigten sich die Rechtsvorgänge der Anspruchserkennung und der Gnade als existentiale Grundformen, in welchen diese geistliche Geschehen sich vollzieht. Der Gnadenvorgang erwies sich zugleich als der materiale Grund des Institutionsvorgangs, aber auch eigentümlich verklammert mit Anspruch und Anerkennung.” (I:771)

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ecclesiastical community are concentrated. The official minister receives his legitimation through his ordination and through his standing within the tradition of the apostolic teaching. Apart from indicating the rights and duties that flow from the specific position that each member of the Church has within her, canon law will have to deal with the question of legitimation of the official ministry.

A theory about the reason for existence of canon law and about its character prepares the way for questioning and criticizing the actual canonical provisions of a given Christian church. This criticizing can be done while trying to take into account all the essential elements of the Church that bind the churches together and while trying to come closer to an ecumenical canon law as a means of ecumenical inspiration. Dombois, unfortunately, does not pay much attention to becoming more concrete and to formulating juridical precepts about the rights and duties of Church members and about the legitimation of official ministers. At the end of the passage cited on the previous page he adds: “With the analysis of these juridical structures the question about the concrete criteria according to which the decision has to be made is not answered yet.”2 Only at the end of the second volume


2 “Mit dem Nachweis dieser Rechtsstrukturen ist jedoch noch nicht die Frage nach den konkreten Kriterien beantwortet an Hand deren sich die Entscheidung vollzieht.” (I:771)

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does he give some general principles of canon law which seem to derive from the questions about the existence and character of canon law.3 A huge area of further development of his theory is to be found here.


3 II:222-224.

Golde, H.M.G.J. van (1988) Sources

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Sources

 

Hans Dombois. Das Recht der Gnade. Oekumenisches Kirchenrecht. Vol. I. Witten: Luther-Verlag, 1961.

Das Recht der Gnade. Oekumenisches Kirchenrecht. Vol. II. Grundlagen und Grundfragen der Kirchenverfassung in ihrer Geschichte. Bielefeld: Luther-Verlag, 1974.

Das Recht der Gnade. Oekumenisches Kirchenrecht. Vol. III. Verfassung und Verantwortung. Bielefeld: Luther-Verlag, 1983.

Golde, H.M.G.J. van (1988) BiblHD

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Bibliography on Hans Dombois

 

M. Bergman, “Renouveau de droit ecclésiastique dans le protestantisme allemand. Le “Droit de Grâce” de Hans Dombois,” Revue de Droit Canonique 16 (1966):12-40 and 17 (1967):47-73.

J. Bergmann, “L’evangile et le droit selon H. Dombois,” Verbum Caro 21 (1967) no. 84:40-61.

R. Dreier, “Entwicklungen und Probleme der Rechtstheologie,” Zeitschrift für Evangelisches Kirchenrecht 25 (1980):20-39.

— “Das Recht der Gnade von Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 30 (1985)

H. Folkers, “Der Rechtsbegriff des evangelischen Kirchenrechts im Lichte der Lehre vom dreifachen Amte Christi,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):327-347.

J. Hoffmann, “Grâce et institution selon Hans Dombois. Une nouvelle approche du mystère de l’église,” Revue des Sciences Philosophiques et Théologiques 52 (1968):645-676 and 53 (1969):41-69

— “L’horizon oecuménique de la réforme du droit canonique. A propos de deux ouvrages de Hans Dombois,” Revue des Sciences Philosophiques et Théologiques 57 (1973):228-250.

W. Lienemann, “Ius Divinum bei Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):423-435.

Ch. Link, “Kirchenrecht als ökumenisches Recht,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):436-450.

A. Peters, “Rechtfertigung und Recht,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):480-509.

S. Riese, “Bibliographie Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):556-570.

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A. Rouco Varela, “Teologia protestante contemporanea del derecho eclesial,” Revista Española de Derecho Canónico 26 (1970):117-143.

U. Scheuner, “Hans Dombois, Das Recht der Gnade,” Zeitschrift für Evangelisches Kirchenrecht 10 (1963-1964):61-74.

— “Zur Rechtstheologie von Hans Dombois,” Zeitschrift für Evangelisches Kirchenrecht 23 (1978) 1-7.

A. Stein, “Hans Dombois’ Anfragen an das gegenwärtige evangelische Bischofsamt im Vergleich mit der Grundordnung der Evangelischen Landeskirche in Baden,” Zeitschrift für Evangelisches Kirchenrecht 32 (1987):546-555.

W. Steinmüller, Evangelische Rechtstheologie. Zweireichenlehre, Christokratie, Gnadenrecht. 2 Vols. Köln/Graz: Böhlau, 1968 (especially pp. 455-787).

E. Wolf, “Hans Dombois. Das Recht der Gnade,” Zeitschrift für Evangelisches Kirchenrecht 10 (1963-1964):74-101.

Golde, H.M.G.J. van (1988) BiblTL

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Selected Bibliography on Theology of Law

 

W. Bertrams, Quaestiones fundamentales juris canonici, Roma: Università, 1969.

D. Composta, La chiesa visible. Lezione di Teologia del Diritto, Roma, 1976

Y. Congar, “Sohm nous interroge encore,” Revue des Sciences Philosophiques et Théologiques 57 (1973):263-294.

E. Corecco, Theologie des Kirchenrechts. Methodologische Ansätze, Trier, 1980.

— et alii, eds. Les Droits fondamentaux du Chrétien dans l’Église et dans la Société — Die Grundrechte des Christen in Kirche und Gesellschaft — I Diritti Fondamentali del Cristiano nella Chiesa e nella Società. Akten des IV. Internationalen Kongresses für Kirchenrecht, Fribourg (Suisse)/Freiburg i.Br./Milano, 1981.

— “Theologie des Kirchenrechts,” in: J. Listl, H. Müller and H. Schmitz, eds., Handbuch des katholischen Kirchenrechts (Regensburg: Pustet, 1983), p. 12-24.

E. Corecco and A. Rouco Varela, Sacramento e diritto: antinomia nella chiesa? Milano, 1971.

E. Elsener, P. Huizing and A. Müller, Vom Kirchenrecht zur Kirchenordnung? Einsiedeln, 1968.

G. Feliciani, La base del diritto canonico, Bologna, 1979.

O. Heggelbacher, Die christliche Taufe als Rechtsakt nach dem Zeugnis der frühen Christenheit, Freiburg (Schweiz) 1953.

J. Klein, Grundlegung und Grenzen des Kanonischen Rechts, Tübingen, 1947.

Kanonische und moraltheologische Normierung in der katholischen Theologie, Tübingen, 1949.

P. Krämer, Theologische Grundlegung des Kirchlichen Rechts. Die rechtstheologische Auseinandersetzung zwischen H. Barion und J. Klein im Lichte des II. Vatikanischen Konzils, Trier, 1977.

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H.-M. Legrand, “La vocation libératrice de la régulation canonique,” Le Supplément 31 (1978):277-290.

— “Grâce et institution dans l’église: les fondements théologiques du droit canonique,” in: J.L. Monneron, M. Saudreau, G. Defois, A.-L. Descamps, H.-M. Legrand and P.-A. Liège, L’Église: institution et foi (Bruxelles, Facultés Universitaires Saint-Louis: 1979), pp. 139-172.

— “La réalisation de l’Église en un lieu,” in: B. Lauret and Fr. Refoulé, Initiation à la pratique de la théologie, Tome III: Dogmatique 2 (Paris, 1983), pp. 145-329.

R. Potz, Die Geltung kirchenrechtlicher Normen. Prolegomena zu einer kritisch-hermeneutischen Theorie des Kirchenrechtes, Wien: Herder, 1978.

V. Ramallo, El derecho y el misterio de la Iglesia, Roma, 1972.

R. Sebott, Die katholische Grundlegung des Rechtes der katholischen Kirche, Roma: Typis Pontificiae Universitatis Gregorianae, 1980.

P. Smulders, “Sacramenten en Kerk. Kerkelijk recht — kultus — pneuma,” Bijdragen 17 (1956):391-418.

— “Die sakramental-kirchliche Struktur der christlichen Gnade,” Bijdragen 18 (1958):333-341.

— “De Kerk als sacrament van het heil,” in: G. Barauna, ed., De Kerk van het Vaticanum II. Commentaren op de Concilieconstitutie over de Kerk (Bilthoven: Nelissen, 1966), pp. 372-395.

W. Steinmüller, Evangelische Rechtstheologie. Zweireichenlehre, Christokratie, Gnadenrecht, 2 vols. Köln/Graz: Böhlau, 1968.

D. Stoodt, Wort und Recht. Rudolph Sohm und das theologische Problem des Kirchenrechts, München, 1962.

A. Vitale, Sacramenti e Diritto, Freiburg/Roma, 1967.

E. Wolf, Recht des Nächsten. Ein rechtstheologischer Entwurf, Frankfurt am Main, 1958.