Validity and Legitimacy

Abstract

The sociology of law deals with the legitimacy of the law in asking why and how laws receive recognition and acceptance. Canon law, in that respect, is currently facing some major difficulties. Thus far, the ecclesiastical legislators have widely excluded the Catholic laypeople from participating in legislation. Their non-participation has weakened their belief in the legitimacy of the law. Furthermore, canon law does not consistently follow the rule of law. The law of the church grants its authorities maximum power without providing for those checks and balances which control power according to a modern democratic understanding. Neither does canon law fully provide nor protect those fundamental rights of church members which modern individuals indulge according to the law of modern democratic states. That many church members at present show a rather anti-juridical attitude towards the law may be due to their verdict that canon law is a result of illegitimate power, and power in church a result of illegitimate law.

In the previous section I discussed the validity of law with the aim of identifying the legal norms which constitute positive law. This section now returns to the validity issue, this time to examine what makes law legitimate. This part of the validity debate takes up the problem that the mere legal validity of the law does not suffice to fully understand what makes the law valid, as many contemporary thinkers find, and that validity also always entails the question of legitimacy. Jürgen Habermas observed, “Law borrows its binding force, rather, from the alliance that the facticity of law forms with the claim to legitimacy.”¹ Habermas therefore concludes, “positive law, too, must be legitimate.”² As my study is not first and foremost about the foundation of law, I mostly forego determining the validity reasons which justify the legitimacy of canon law.³ Instead, I adopt a sociological approach which seeks to identify the conditions under which individuals and groups, including Catholics and groups in church, tend to perceive the law as legitimate nowadays. In this light, Niklas Luhmann speaks of legitimacy as “the purely factual and widespread belief of the validity of the law, of the binding force of certain norms or decisions, or of the value of principles which justify them”.⁴ In this context, it is the task of the sociology of law to address whether validity theories have any chance of convincing contemporary legal subjects of the legitimacy of the law. Consequently, the sociology of law studies legitimacy issues in a descriptive light. Frequently it does not bother with the question of whether the law deserves the legal subjects’ acceptance, and is more concerned with studying whether legal subjects accept the law in fact, whatever their reasons. Stefan Machura observes that, in the past, legal scholars and philosophers have sometimes struggled to accept this narrow sociological focus on the factual acceptance of the law.⁵ However, sociology and the sociology of law have largely fallen into line behind Luhmann, who repeatedly argued that sociology should adopt the position of a mere observer if it sought to study whether and why individuals or groups accept the law. As Luhmann’s approach has been highly influential for the sociology of law, I will also follow his approach in my study.

Sociology and the sociology of law, when speaking of individuals or groups who deem the law to be legitimate, frequently rely on terms such as “recognition,” “acknowledgement,” or “acceptance.”⁶ These terms express that individuals or groups perceive of the law in an affirmative way. However, their essential affirmation does not necessarily lead to their compliance. John Searle provides an example to show that accepting the law does not necessarily mean abiding by it. On the contrary, even breaches of law might be a way of acknowledging the law, as Searle explains, using theft as an example,

Even if I am a thief, I recognize that I am violating your rights when I appropriate your property. Indeed, the profession of being a thief would be meaningless without the belief in the institution of private property, because what the thief hopes to do is to take somebody else’s private property and make it his own, thus reinforcing his commitment and the society’s commitment to the institution of private property.⁷

It might seem paradoxical to view a crime such as theft as an act acknowledging the institution of property and of property law. However, Searle’s example helps to show how abiding by the law as well as breaking the law might both be acts which demonstrate a recognition of the law and of the institutions created by the law. This twofold perspective is particularly interesting for my study, as my fifth section examines the ways in which individuals and groups respond to the law, and in particular how church members and ecclesiastical groups react to canon law. For the sociology of canon law, in any case, it is particularly relevant to examine the consequences of the legal subjects’ failure to acknowledge canon law, as the non-acceptance of some legal matters of canon law is a widespread phenomenon. Analysing the phenomena of acceptance and non-acceptance, however, also makes it necessary to study the reasons why individuals and groups tend to accept or reject the law. As Manfred Rehbinder notes, there is frequently a reason why legal subjects accept the law, as they tend to accept the law only when it seems plausible to them.⁸ His remark alludes to one major reason for acknowledging the law which lies in the legal subjects’ belief about what constitutes legitimate law. One may assume that rejecting a law is often based on the very same reason too, namely that legal subjects find the law implausible in light of their beliefs about what makes law legitimate. The sociology of law is therefore not only interested in identifying cases in which law is accepted and cases in which it is not, but also seeks to understand the reasons underlying the legal subjects’ acceptance or rejection of the law. As a result, a sociology of canon law has to analyse the conditions under which church members accept canon law or reject it. It is of key interest to ask why ecclesiastical legal subjects are increasingly tending to disregard canon law as the legitimate order of the church.

5.1 A Sociological View of Validity Reasons

As I stated above, the sociology of law is not concerned with identifying viable validity reasons for the law with the aim of justifying the law. Nevertheless, validity reasons do play a role in the acceptance or non-acceptance of law. They are of interest for the sociology of law insofar as validity reasons may actually be reasons why the legal subjects find the law legitimate or not, and, in consequence, accept or reject it. Studying what fosters the acceptance or rejection of law, one may find that not all validity reasons which were suitable for grounding legitimate law in the past are acceptable for contemporary legal subjects. Some further explanation might help to illustrate this. In plural and secular legal orders, for instance, it is impossible to ground law in revelation, even though some members of the legal community might believe in the revelation and might be open to accepting it as a reason of law. However, as there is no common agreement on the revelation as fact across the entire legal community, we may not refer to the revelation as a validity reason of law which is relevant to the whole community. A similar problem applies to nature as a validity reason of law in plural societies. This is because society, to allow for law to be grounded in natural law, would also have to agree on overarching normative ideas about what is naturally just, something which is equally unlikely in plural societies.⁹ Revelation and nature have therefore lost their traditional influence in the current secular justification of law, which is most evident in the European debates. Insofar as norms founded in this way are not based on a common understanding which all or most legal subjects share, they also have little chance of finding acceptance in pluralist societies. Remnants of revelation and nature which we might still find here and there in contemporary law—article 6 section 2 of the German Basic Law speaks, for instance, of the parents’ right to care for their children as their “natural right”— are frequently relicts left over from older law which have found their way into the language of present-day political communities. Whilst these validity reasons were persuasive in the more homogeneous societies that predated the mid-twentieth century, today they stand little chance of convincing secular individuals and plural groups of the validity of the law. It should be noted though that this rejection of the viability of natural law as a justification of law is a rather Eurocentric argument. In Anglo-American legal theory, natural law arguments are far more widely accepted and continue to play a role in the justification of law—at least on a small scale. However, they are likewise not uncontested for the precise reason mentioned, namely that it is becoming ever more difficult to ground the law of increasingly pluralist societies on a shared belief of what is naturally right.

5.1.1 Validity Derived from Power

Admittedly, it is not completely out of the question, even in plural societies, to base law on revelation and nature. However, this is only genuinely an option if one abandons any attempt to gain the legal subjects’ acceptance, and resorts to the power argument instead. By using power, the authorities might simply override the differing beliefs of plural groups by declaring a specific belief about what is normatively binding according to the revelation or nature to be the norm, and by directing individuals and groups to abide by it. Natural law arguments in particular tend to resort to the power argument to assert one specific belief about what is naturally right over other competing views. In this light, legal theorist Bernd Rüthers notes that natural law arguments, when confronted with pluralism, tend to turn questions of fact into questions of power. Rüthers points out that the epistemological problem of identifying which norms accord to nature immediately becomes an authority issue about who defines what “natural law” is. Since plural conceptions about what is good and just make it virtually impossible for the members of heterogeneous groups to agree on what is naturally right, the issue of power is never far away. This in turn means that whoever relies on natural law as the foundation of law must also name an authority that is empowered to provide a binding definition of what is naturally right. Rüthers maintains, “Whoever claims the existence of binding natural law must also name a defining authority, a ‘magisterium’ of natural law, for the cases in which no consensus about its content can be found”.¹⁰ However, this strategy of preserving nature and likewise revelation as validity reasons for contemporary law by having them morph into the validity reason of power does not solve the problem of legitimacy. This is because at present, revelation and nature are not alone in losing influence as validity reasons of law. In addition, legal subjects of today have developed equally serious reservations about the validity reason of power. This has little to do with power as such, which, as I explained in Sect. 4.1, is always closely associated with law. Yet power, in order to serve as a legitimate force behind the law, requires legitimation. Legal subjects only tend to recognise law as legitimate law when they find the power from which the law derives to be legitimate power. Following Max Weber, we may expect this whenever power takes on a form of legitimate domination which Weber calls “authority.” A short study of Weber’s definitions may help to understand this. Weber defines “power” as all available options for enforcing an actor’s will, even if this requires violence. He describes power as “the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance, regardless of the basis on which this probability rests.”¹¹ Weber uses the term “domination” to describe those power relations under which those exercising power may expect their commands to meet with obedience. Weber states, “‘Domination’ (Herrschaft) is the probability that a command with a given specific content will be obeyed by a given group of persons.”¹² According to Weber, “authority” is a particular way of exercising “domination.” It describes legitimate forms of domination as those acts of domination whereby those with power do not require force to implement their will, as those under their power respond to their commands with obedience because they accept the authorities’ domination for reasons such as charisma, tradition, or law.¹³ According to Weber, individuals or groups accept their charismatic leaders’ domination insofar as the leaders’ charisma justifies their rule. Group members accept traditional authorities—such as those authorities “founded upon the sacredness of tradition, i.e., of that which is customary and has always been so”¹⁴—due to their domination “resting on an established belief in the sanctity of immemorial traditions and the legitimacy of those exercising authority under them”.¹⁵ So individuals and groups accept the authority of a certain person as long as this person or the group to which this person belongs is traditionally endowed with a certain authority. Finally, in the case of domination legitimised by law, those subjected to domination tend to accept the authorities’ power over them because their power is legitimised by law. The authorities are legitimate rulers as their power is not unlimited and is circumscribed by the law in the form of rules governing authority and procedure. Legal subjects, hence, tend to accept decisions made by administration or adjudication precisely because their power is not arbitrary but is constrained and controlled by the law.

5.1.2 Social Contract and Consensus

According to Weber, in modernity authority based on law largely eclipses charismatic and traditional authority, although it never does so entirely.¹⁶ Individuals and groups tend to accept authority based on law primarily because law provides them with a rational framework for pursuing their own interests. Weber considers economic interests to be of primary albeit not exclusive importance in modern capitalist societies.¹⁷ The law itself creates the conditions by which it may be accepted, namely by providing a rational and logical system of rules that creates a reliable and resilient framework for capitalist exchange relations. Whilst we need not share Weber’s focus on economic matters, it does seem expedient to make the interests of individuals and groups the starting point for discussing why they accept the law. In this light, Thomas Raiser suggests that accepting authority based on law is in the legal subjects’ own interests insofar as they find the existence of the law and of authority based on the law to be beneficial as a means of curbing individual egoism and group interests to the end of protecting common interests and the well-being of all members of society.¹⁸ The idea that legal subjects agree to the limitation of their individual aspirations because it is in their long-term interests to do so points clearly to the social contract as a source of legal validity and thus to the validity reason which the legal theorists of the Enlightenment mobilised in response to the forces of pluralisation in early modernity. Modern legal theories no longer accept that the content of common belief serves as the basis of law; instead they base the law on a common agreement that it is good for all to submit to a common order. Above and beyond any religious and ideological beliefs, these theories assume that legal subjects consent to the law because doing so facilitates social life in general. One contemporary variant of social contract theory that has been the subject of extensive debate in recent decades is consensus theory, which is foremost the work of Jürgen Habermas. Consensus theory posits that the cohesion of modern societies is built upon consensus and that, consequently, the law, which is supposed to contribute to the integration of modern societies, is also subject to the principle of consensus. Consensus, in consequence, becomes the validity reason of law. It is achieved through discourse, as Habermas writes, “Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses”.¹⁹ Habermas bases his argument in favour of consensus as a validity reason of law on the principle of human autonomy. In order to do justice to their individual freedom, modern human beings may only be bound by self-legislation. This makes it necessary to understand individuals themselves as the producers of the norms to which they are subject, as Habermas explains, “The idea of self-legislation by citizens, that is, requires that those subject to law as its addressees can at the same time understand themselves as authors of law.”²⁰ This authorship develops through rational discourse as a process of negotiation in which the legal subjects identify the legal norms which are deserving of their acceptance. Discourses are rational if they offer the conditions under which a rational will can come into being. For Habermas, these conditions include first and foremost the freedom from hierarchical domination to create an ideal speech situation undistorted by asymmetrical power relations. Only relations which are free from non-egalitarian domination can ensure that discourses “remain porous, sensitive, and receptive to the suggestions, issues and contributions, information and arguments that flow in from a discursively structured public sphere, that is, one that is pluralistic, close to the grass roots, and relatively undisturbed by the effects of power.”²¹ If these conditions are guaranteed, we may assume that the legal norms resulting from discourse may be considered legitimate insofar as they can obtain the consent of all those they concern.

5.1.3 Improbable Consensus

Consensus theory has met with broad approval, but it has also attracted criticism. One of the main points of criticism relates to doubts about whether consensus building, as Habermas seems to suggest it, is actually practicable. The question is whether ideal speech situations in the Habermasian sense are a realistic prospect. Even if they are, it remains unclear whether one can realistically expect discourse to end in consensus, as we might also expect discourse to end in ultimate dissent.²² It is also doubtful whether discourse can be constructed in such a boundless way that it includes all those potentially affected by its results. Sociologists of law in particular have been at pains to point out the limits of the consensus model. They stress that in complex contemporary societies it is impossible to achieve a consensus on the law, either with respect to substantive law or with respect to procedural law.²³ To expect consensus is illusory, as Luhmann states, “No society can found its law on consensus if one means by that that all of the people will agree to all of the norms all of the time.”²⁴ Luhmann considers such a consensus both ontologically unrealistic because society can never achieve it, and epistemologically unlikely insofar as we could never prove consensus, even if it existed. Luhmann therefore states that “such a criterion for the distinction between validity/invalidity cannot be tested in court. It is not justiciable, and thus it cannot be practiced in the legal system itself.”²⁵ Consequently, as Luhmann finds, “A system-wide universal test of validity/invalidity for each legal norm apparently is not convertible into practical programs.”²⁶ Habermas himself also responded to these comments on his theory. He agrees that it is unrealistic to expect a discourse in which all those affected by a norm can actually participate. But, as he suggests, this does not render the idea of discourse redundant. Indeed, as Habermas argues, it is important to remember the fictitious value of the ideal speech situation. This functions best when the actual participants in norm-finding or norm-debating processes not only exclusively pursue their own interests, but also consider the concerns of those who are not present. Habermas states, “as participants in rational discourses, consociates under law must be able to examine whether a contested norm meets with, or could meet with the agreement of all those possibly affected.”²⁷ His remark offers two possible approaches to the justification of norms: either to involve all those concerned in a rational discourse, or to consider the views of those who are not present. Habermas considers the latter approach to be workable when it comes to evaluating the legitimacy of concrete and thus pre-existing law, “the legitimacy of statutes is measured against the discursive redeemability of their normative validity claim—in the final analysis, according to whether they have come about through a rational legislative process, or at least could have been justified from pragmatic, ethical, and moral points of view.”²⁸ Habermas does not therefore see the crux of consensus theory in whether a consensus exists or arises in fact, but in whether a consensus is conceivable. The law cannot continually insist on the legal subjects’ factual recognition. Instead, the aim is to secure conditions under which law can come into being which in principle allows for the recognition of the emergent law. Habermas describes as one key condition “that the legal order must always make it possible to obey its rules out of respect for the law.”²⁹ Thus, law does not always draw its legitimacy from its legal subjects’ actual consent. However, it may be considered legitimate if this consent might be obtained in principle. The legal subjects’ potential consensus is then the validity reason of law. However, we may also ask whether it is realistic to expect consensus to be even potentially possible. From the perspective of legal theory, Christoph Möllers and others doubt this is the case, noting that consensus theories overestimate the power of consensus in this respect. Möllers does not argue against consensus per se, but against the idea that it can serve as the foundation of a whole normative order. He elucidates,

We can think of consensus as a goal that cannot be achieved yet nevertheless guides our thought process, but not as an existing foundation that is ingrained in a norm such as the guarantee of human dignity. The claim would be that consensus practically and continuously arises from solving small and concrete questions, not in great formulas. Questions of war and peace or basic standards of human rights, by contrast, are not capable of consensus if one takes consensus to mean more than the agreement to a compromise formula.³⁰

While Möllers does not banish consensus from the validity debate of legal norms, he is sceptical of overarching theories that use consensus as a conclusive answer to the validity problem of law. The sociology of law has similar critical voices that cast doubt on the power of consensus to justify legal norms. Doris Mathilde Lucke, for instance, stresses that consent to the law is not only frequently absent throughout the onward march of modernity, but is becoming increasingly unlikely.³¹ This is because law is losing its capacity to gain the legal subjects’ recognition as a consequence of its ongoing rationalisation, as Lucke maintains. This process of progressively rationalising the law by standardisation, abstraction, subsumption, the definition of typical facts, and the creation of case groups is broadening the gap between social and legal reality. Accordingly, the intersection between social reality and legal reality where one might expect consensus on the capacity of the law to support the community and to serve justice is becoming ever smaller. As law becomes ever more detached from the legal subjects’ everyday life and everyday knowledge, its chance to generate consensus decreases; in fact, law is becoming the exclusive preserve of legal experts, detached from everyday reality and with only sporadic connections to it. As a result, it becomes unrealistic to hope that the legal subjects might embrace it. In fact, it seems fair to expect the opposite, as Lucke explains. The tendency is for law to become increasingly unacceptable to its legal subjects and is, in consequence, losing much of its effectiveness. We may identify a number of contemporary signs of anomie which point at this problem. Lucke’s observations raise genuine doubts about whether the law may expect much support in present societies, as legal rationalisation takes its course. Her objection is certainly worthy of further consideration. Whilst it does not contradict Habermas’s approach, it does raise some fundamental questions about it. From the perspective of validity theory, Habermas relies on consensus as a legitimacy reason for law; from the point of view of the sociology of law, Lucke observes that current law is in fact increasingly incapable of forging this consensus. While it seems necessary to have at least a potential consensus to establish the legitimacy of law, the steady rationalisation of law is depriving the law of any chance of achieving a de facto consensus. Hence, consensus becomes unlikely, yet there seems to be no alternative to it as a validity reason of law. This impasse suggests that legal systems will increasingly struggle to achieve recognition. From the perspective of the sociology of law, it remains unclear if there is a way to address this fundamental problem, and how to go about it in the future.

5.1.4 Procedural Legitimation

Roger Cotterrell’s deliberations on this subject may be of help. In view of the fragility of any consensus and the necessity of achieving one, Cotterrell considers it to be an important symbolic achievement of the law that it successfully conceals the fact that it cannot rely on a genuine consensus in the legal community or on the legal subjects’ consent. The law succeeds in hiding any lack of consensus by employing a rhetoric of consensus that actually conceals grave and irreconcilable differences in the expectations placed upon it. Cotterrell speaks of “conflicting interests disguised by the consensus rhetoric of the law”.³² Since true consensus is becoming increasingly improbable in contemporary pluralist societies, the law falls back on the rhetorical invocation of consensus to evoke a presumption or fiction of consensus. In a similar vein, Niklas Luhmann believes that law must assert that it expresses consensus, if only probably, provisionally, and temporarily.³³ Claims of this kind remain convincing as long as nobody deconstructs them. Klaus Röhl clarifies this point by emphasising that it is not the actual experience of consensus that is essential for the presumption of consensus, but the absence of profound dissent. The problem that a general consensus is not at hand is unimportant as long as there is no fundamental dissent that proves consensus to be fully delusive.³⁴ While dissent might expose that consensus is merely fictitious, the law—most of the time—profits from the fact that nobody voices major dissent. However, this begs the question why we might expect legal subjects to be content with a fictitious consensus. Luhmann responds by referring to the institutionalisation of law which suggests consensus. In modern societies, he says, the behavioural expectations associated with law are institutionalised, so that seeking a real factual consensus is not consistently necessary, as institutions come with a presumed consensus.³⁵ For the most part this illusion is largely sustainable. It is sufficient, Luhmann explains, that

the ‘general societal consensus’ needs only to be matched in certain respects and moments by the actual experience of some people. The function of institutions depends, therefore, less on the creation than on the economy of consensus. The saving is achieved mainly by anticipated consensus in the expectation of expectations, acting as a presumption and not normally even requiring a concrete text.³⁶

Clearly, we may not expect institutionalisation to consistently succeed in generating the presumption of consensus. This is because institutionalisation itself is contested and raises questions of recognition;³⁷ in this respect, Luhmann concedes that sociology struggles to explain how institutions, burdened with their own problems of recognition, support the recognition of other norms, such as legal norms. Nevertheless, institutionalisation seems to support a fiction of consensus based on a generalisation of consensus.³⁸ Luhmann notes that a generalisation of consensus consists of two strategies. First, it is important to support the fictitious consensus so that the legal subjects gain the impression that there is actually a consensus about the law; second, it is necessary to ostracise those who openly undermine the idea of consensus.³⁹ Hence, those who dissent must expect the imposition of negative sanctions. Both strategies for the generalisation of consensus—the generation of the fictitious consensus as well as the suppression of dissent—take place in the context of institutionalised procedures in which the legal subjects participate, directly or indirectly, such as elections, parliamentary debates, and court proceedings.⁴⁰ By generating a presumed consensus and stifling dissenting voices, institutionalised procedures in which the law is generated and applied contribute to creating an aura of legitimacy around the law. Stefan Machura uses court proceedings by way of illustration. If a court makes a procedurally correct decision, the losing party has no other socially adequate option but to conclusively accept the decision. This is because a losing party who continues to reject the decision would run the risk of being ostracised and being regarded as a social pariah.⁴¹ Following Luhmann, one can therefore assume that law can claim to be consensual if it originates from procedures which adhere to the rule of law and is applied in procedures under the rule of law.⁴² The results of these legislative and judicial procedures, such as laws and judicial decisions, are thus endowed with the presumption of legitimacy.⁴³ Jürgen Habermas agrees with this from the perspective of validity theory, noting, “In the demanding conditions of fair procedure and the presuppositions of communication that undergird legitimate lawmaking, the reason that posits and tests norms has assumed a procedural form.”⁴⁴ Habermas emphasises that modern legislation is therefore accompanied by high expectations. This is because legislation must live up to the promise to produce laws rationally deserving of recognition, as Habermas explains, “The positivity of law is bound up with the promise that democratic processes of lawmaking justify the presumption that enacted norms are rationally acceptable.”⁴⁵ In contrast to premodern legal norms, modern law cannot simply be the expression of an individual ruler’s will, but must express the citizens’ will and give due expression to their self-legislation, either factually or fictitiously. Habermas explicates, “Rather than displaying the facticity of an arbitrary, absolutely contingent choice, the positivity of law expresses the legitimate will that stems from a presumptively rational self-legislation of politically autonomous citizens.”⁴⁶ However, as Habermas also notes, contemporary law arises from political procedures that we cannot simply interpret as the politically autonomous self-legislation of rational citizens. Hence, the connection between autonomous self-legislation and concrete legislation is only plausible if the rule of law controls legislative procedures. Habermas observes, “legitimate law reproduces itself only in the forms of a constitutionally regulated circulation of power, which should be nourished by the communications of an unsubverted public sphere rooted in the core private spheres of an undisturbed lifeworld via the networks of civil society.”⁴⁷ Legislative authorities prove to be legitimate only if they are constrained by the rule of law, including the authorities’ subjection to the law, the separation of powers, the election of public officeholders, and limited time periods for public offices. Law therefore proves to be legitimate only if it derives from legitimate authorities and flows from procedures controlled by the rule of law. Yet Habermas is not entirely convinced by a purely proceduralist ratio. In his view, the formal rule of law as represented by constitutional procedures must be supplemented by substantive elements which qualify the legal order as a framework of procedures which are worthy of recognition. The rule of law must therefore justify itself formally and substantively. Among the relevant substantive criteria of the rule of law from a socio-legal point of view are the state’s guarantee of fundamental rights, such as equality before the law, freedom of speech, and freedom of assembly, which allow for the public criticism of officeholders, and their subjection to control by a free press and public discourse.⁴⁸

5.1.5 Accepting Majority Decisions

But even when the law follows the rule of law, the question arises as to why modern-day individuals consider law to be particularly worthy of recognition if it is the result of constitutional procedures. After all, there are often reasons to doubt the results of concrete legislative procedures. As their results are frequently based on majority decisions, they are undeniably contingent. Majorities have only a limited legitimising effect. Compared to consensus, we can only consider them to be stopgap solutions, as Luhmann emphasises.⁴⁹ Philosopher John Dewey remarked in a similar vein, “Majority rule, just as majority rule, is as foolish as its critics charge it with being.”⁵⁰ Majorities are therefore merely of an interim nature, as Habermas observes from the perspective of legal theory, “Majority rule retains an internal relation to the search for truth inasmuch as the decision reached by the majority only represents a caesura in an ongoing discussion; the decision records, so to speak, the interim result of a discursive opinion-forming process.”⁵¹ Yet at the same time, majorities also prove to be helpful and even essential for taking decisions. When consensus-based “ideal procedures”⁵² fail, majorities might achieve the desired result, “as a rule of an actual—not imagined—procedure”,⁵³ as Christoph Möllers emphasises. Möllers therefore argues against any attempts to devalue majority rule, as is common in some approaches to legal theory. He criticises these theories as guided by

idealization … which views every form of practical implementation as deficient. For example, if majority rule only represents an incomplete representation of an idealized public use of reason, which builds on the generalization of arguments, then rightness and reality are played out against each other in a way that misses a social practice that aims for realization.⁵⁴

Hence, we must accept that majority decisions are contingent and may be reversed, but without devaluing majority rule as such. Instead, we must come to a differentiated view of majority rule, as Habermas argues, stating that a majority must “be viewed as the rationally motivated yet fallible result of a process of argumentation that has been interrupted in view of institutional pressures to decide, but is in principle resumable”.⁵⁵ However, one may ask what consequences ensue from this sociologically. From the perspective of sociology, the key question is whether majority decisions, as obviously fallible as they are, stand a chance of being accepted as legitimate decisions. Hence, the sociological debate is not concerned with the normative dimension of the majority issue but with the empirical question of whether majorities may expect to find widespread acceptance among those whom their results concern. We have to discuss whether it is plausible that majorities may find acceptance and, if so, for what particular reasons. Luhmann expects them to find acceptance due to the proceduralist ratio of majority rule which helps us cope with the highly complex conditions of modernity. According to Luhmann, procedures serve to absorb the shock effect of social development. Procedures present developments as decisions and, thus, as purposeful progress. And they provide individuals and groups with opportunities to participate in decision making. Consequently, as Luhmann notes, “A decision does not fall upon the individual as an unexpectable surprise, as luck or bad luck, which one may only expect helplessly without having a chance to prepare for it, but as the result of a decision-making process which one may prepare for by witnessing it and acting according to it.”⁵⁶ Accordingly, Luhmann finds expectability and participation to be the two major criteria which provide procedures with legitimacy. These criteria motivate legal subjects to accept the law resulting from these procedures even though the law proves to be the result of a contingent and fragile majority decision. Procedures, thus, are an “existential complement of positivising the law. They minimise and absorb the moment of shock which is connected with decision.”⁵⁷ Despite a complex present and uncertain future, they hold out the promise of security without seeming to be fully arbitrary, as Luhmann explains,

In light of an uncertain future and the sense of overload resulting from the immense complexity of options of variable law, procedures help to create security and allow for significant, expressive, meaningful, and dutiful behaviour in the present time. In this way, the individuals may experience the present time as meaningful and may act according to it, even though their lives are moving towards an uncertain future.⁵⁸

By providing individuals with opportunities for participation, procedures also help to absorb protest, as Luhmann notes.⁵⁹ Susanne Baer agrees, citing empirical evidence that opportunities for participation in legislation, adjudication, and administration actually help to reduce conflicts in these fields.⁶⁰ John Dewey links this idea to the majority principle. As limited as the majority principle is, it is not exclusively about finding a majority result which serves as a decision, but also about the procedural logic revolving around “antecedent debates, modification of views to meet the opinions of minorities, the relative satisfaction given the latter by the fact that it has had a chance and that next time it may be successful in becoming a majority.”⁶¹ In this light, opportunities prove particularly suitable for increasing the tolerability of any acute deficits arising from concrete decisions. Opportunities increase the acceptability of a decision even when there are justified doubts about its correctness, as Luhmann notes. We may witness this, for example, in decisions that promote rather questionable inequalities. In light of the principle of equality, all inequalities require justification to become tolerable. According to Luhmann, procedures render precisely this service. He observes, “It must be possible to present all differences and all inequalities as the result of a procedure and to justify them as such.”⁶² If unequal rights arise from a decision in which everyone can potentially participate, it is more likely that those to whom they pertain will accept them. These decisions become tolerable because the procedures offer a fair chance to everyone and also because future procedures hold out the prospect of further opportunities. This renders these decisions more than just fate, and at least gives the impression that those affected by them may influence their outcome. However, this scenario also presupposes a certain culture of decision making. Obviously contingent decisions, for instance, may find acceptance only if the majority continues to treat the minority with respect, as Luhmann emphasises. Democratic systems respond to this need by providing dissenting individuals and minority groups with subjective rights and procedural rules which protect them from the majority.⁶³ The conditions under which majority decisions are taken also play a role. In order to be able to assert the legitimacy of their results, decision-making processes must ensure that conditions prevail under which one might at least conceive of a general consensus. Whilst a general consensus rarely occurs, it must remain possible. This means that processes must refrain from excluding certain individuals or groups from the process of will formation in advance. Not all members of society can be members of every decision-making body. However, this is unproblematic as long as participation at least remains an option, as Luhmann finds,

It is more important … that the procedural form in which we strive for consensus shows a certain attitude towards the consent of others and determines that every voice counts. Each individual’s consent (in an election, each voter’s consent; in legislation: each parliamentarian’s consent) is relevant in principle—not in the sense that everyone in fact needs to agree with each decision, but in the sense that nobody’s opinion is a priori declared irrelevant.⁶⁴

5.1.6 Representative Participation

Luhmann’s observations on the legitimacy of majority decisions coincide with other sociological findings. Hanna Pitkin’s ground-breaking work on political representation (1967) comes to mind. In her reflections, Pitkin refers to complex political decision making in which not all members of society are able to participate themselves, but in which participation takes place through representation, by agents representing the members of society. In modernity, formal representation—such as the “Leviathan,” the absolutist ruler of the premodern era representing his people—is no longer acceptable. To achieve legitimacy in this day and age, representation must consist of a substantive link between those who represent and those who are represented. Jürgen Habermas stresses this point in reference to decisions made through elections, which “must provide for a fair representation and aggregation of the given interests and preferences.”⁶⁵ This includes representation of the outer fringes of the spectrum of opinion to be found in a society, as Habermas observes, “Here representation can only mean that the selection of members of parliament should provide for the broadest possible spectrum of interpretive perspectives, including the views and voices of marginal groups.”⁶⁶ The question arises how to ensure the adequate representation of this spectrum. Practically speaking, it is unrealistic to expect to assemble a perfect selection of representatives to represent the diverse opinions that exist in a plural society. Hanna Pitkin does not deem this necessary. Instead, for reasons of acceptance, it is more important that the represented may be regarded as represented adequately in the procedures, even if the representatives do not represent their precise interests. Pitkin refers, for example, to representation based on “standing for”,⁶⁷ in which the representatives stand for the key characteristics of those they represent, without having to ensure that every view that exists in society is actually represented in decision making. She observes that successful representation by the representatives “depends on the representative’s characteristics, on what he is or is like, on being something rather than doing something. The representative does not act for others; he ‘stands for’ them, by virtue of a correspondence or connection between them, a resemblance or reflection.”⁶⁸ It is therefore necessary to ensure in the formation of political bodies that their composition reflects the represented individuals and groups in this sense of “standing for.” Pitkin consequently notes, “In political terms, what seems important is less what the legislature does than how it is composed.”⁶⁹ Yet, as Pitkin also observes, it does not seem necessary for the represented individuals and groups to be represented with respect to all of their distinct features and qualities, which would in itself be practically inconceivable due to the limited size of decision-making bodies. In order to be able to speak of representation, however, it is imperative not to deliberately exclude any individuals or groups to whom decisions pertain. The ideal selection of representatives must achieve the representation of society as a whole or rather not exclude the possibility of full representation, as Pitkin finds, “What is necessary to make a representation is not accuracy of depiction of something visible, but simply depiction of something visible, the intention to depict.”⁷⁰ Selecting representatives by the drawing of lots, for example, does not ensure that the whole community is substantively represented. Nevertheless, one may consider this selection legitimate because it is open to and does not preclude the representation of any members of a group.⁷¹ On the other hand, a process of selection that intentionally excludes certain individuals or groups from being represented creates a problem of legitimacy. With regard to the question posed here about how majority decisions may find acceptance even though their results are obviously contingent, it follows from these considerations that majority decisions tend to appear acceptable whenever we may regard the decision-making bodies as legitimate representative bodies for those for whom they make their decisions. If no one’s opinion is declared irrelevant a priori and all those affected are at least potentially represented in the decision-making process, decisions have a good chance of being accepted, even if they do not correspond to the will of all. In addition, majority decisions may particularly hope for approval from the defeated minority if the minority has the reasonable expectation of becoming a majority in a future decision.

5.2 The Recognition of Canon Law

In light of the foregoing discussion, I want to use the following section to analyse what the situation is with respect to canon law. Particularly in a community such as the church, which is at its core based on a shared faith, it seems reasonable at first glance to assume that the legal subjects share a wide-ranging consensus on many issues. But contrary to expectations, the reality of canon law is rather different. Recognition of canon law is often a matter of dispute, as theologians and canonists can confirm.⁷² Above all, many church members accuse canon law of oppressively juridifying church life. The result is disenchantment with the law among many legal subjects and a weariness in church with many institutional issues. Noting a new phenomenon in the history of canon law, Ladislas Orsy describes how the law struggled to achieve recognition after the Second Vatican Council, which was followed by what Orsy describes as an increase of anomie in church, noting, “A new phenomenon arose: canon law was acquiring an increasingly bad reputation among God’s people.”⁷³

5.2.1 Juridification and Trivialisation

Canon law itself has contributed in no small measure to its own poor reputation. The fact that many church members experience the encroachment of the law into the various spheres of ecclesiastical life as oppressive rather than empowering has much to do with the intrusive nature of canon law and its failure to accept certain boundaries of law. Canon law is more expansive and in some respects more invasive than modern individuals are accustomed to from the majority of secular law. It extends to or includes extra-legal spheres, as discussed in Sect. 4.2.2, without consistently respecting its own boundaries and thus the difference between law, morality, and theology. In official texts, the boundaries between magisterial theology and law are often so fluid they are virtually invisible to the legally untrained eye. Individual papal laws frequently start off with a lavish introductory section containing doctrinal or moral content preceding the legal norms. Although the threshold where doctrine passes into law is evident to most canonists, it is not always so clear that others can easily distinguish the legally binding part of a papal law from statements of a non-legal nature.⁷⁴ Moreover, in some cases canonical norms in themselves do not exclusively contain legal content. The current Code of Canon Law, for example, contains statements of a doctrinal nature that were formally transformed into positive law without there being any obvious need for them within a legal document. Sacramental law, in particular, contains official sacramental doctrine in the form of positive legal norms that one might expect to find in the catechism, liturgical books, or papal letters rather than in a legal code. These norms describe the meaning of sacramental acts in a descriptive and theological manner (eg canon 834 §1 CIC/1983) without drawing a link to legal consequences, or include legal norms in theological statements (see canons 840, 849 CIC/1983) without the doctrinal elements contributing anything to the legal content. According to the definition of law as given in Sect. 2.1.13, these statements are not legal norms in terms of their content, because they are not justiciable. Instead, ecclesiastical doctrine takes on the formal appearance of law, albeit without any legal consequence. One wonders what the underlying idea is behind this practice. The legislator undoubtedly intended the formal legalisation of doctrine to be an instrument for highlighting the specifically religious character of canon law and for emphasising the relevance of theological knowledge in the application of the law. However, these doctrinal norms predominantly serve to create an altogether different impression among the legal subjects. Those Catholics who are positively disposed towards the law may see in this practice a premodern category error in the mixing of theology, morality, and law. Others might find the juridification of the non-legal a strategy by the legislator which has highly problematic implications, such as submitting doctrine to law, and thus also constraining the freedom of faith through the law. Whilst it is hard to verify whether this accusation is true or not, it should be noted from a sociological standpoint that the lack of clear boundaries between ecclesiastical doctrine and law, as shown in the formal juridification of official sacramental theology, feeds accusations of juridism.

Contributing to this impression of juridism are also certain legal particularisations that are not infrequently found in canon law. I use the term “particularisation” to refer to legal regulations that undermine the generality of the law. Particularised law includes legal norms that get lost in the minutiae of regulations without their level of detail yielding any recognisable benefit for the legal community. Critics of European law, for example, often criticise European regulations for their minute concern with the degree of cucumber curvature to the detriment of general regulatory concerns. This once again brings to mind Niklas Luhmann’s example of “trivial law,” namely “claims of premiums for the destruction of apples in a particular harvest”.⁷⁵ The legal subjects commonly react to this type of trivial law by developing “strategies of defence”,⁷⁶ as Luhmann observes. Particularisations are therefore intimately connected with the issue of recognition, as Roger Cotterrell states.⁷⁷ They frequently have a negative effect on the legal subjects’ acceptance of the law. Canon law also contains evident particularisations that tend to undermine the legal subjects’ acceptance of canon law, as we may assume. One example is the recent controversy over Eucharistic matter, which culminated in a discussion about how much gluten hosts should contain in order to be considered valid Eucharistic matter.⁷⁸ Whilst the discussion of the Eucharistic matter should be approached with sensitivity due to the importance of the Eucharist as a core sacramental rite of the church, it is doubtful whether a naturalistic debate about the nature of “real bread” that revolves around its gluten content does justice to the subject. These kinds of arguments might reinforce the impression among many Catholics that canonical regulations tend to be about trivial issues and thus do not deserve any serious attention. In the concrete case, this impression not only damages the debate about the Eucharist, it also damages the law, which, as a medium for such particularising regulations, leads the legal subjects to wonder whether it truly deserves their attention and their acceptance.

5.2.2 Constitutional Challenges

The above examples show that canon law itself contributes in no small way to weakening its chance of achieving a consensus among its legal subjects. But while consensus on the law is unlikely and becoming ever more unlikely in any complex legal community, as argued in Sect. 5.1.3, the situation in church is even more dramatic, as Simon Hecke posits. This is because, with regard to canon law, not only is any attempt to reach a consensus destined to fail—a problem which, as discussed, applies to consensus on the law in general—, but there is also significant dissent on the law in church, as Hecke observes, noting, “Research and survey findings as well as protest movements within the Catholic Church have been proving for a long time that there is less common consensus and more common dissent with canon law among the ordinary church members.”⁷⁹ Anyone currently studying the level of acceptance of canon law will soon discover a range of phenomena which not only reveal a lack of acceptance of the law among the legal subjects, but demonstrate their open dissent. Hecke sees the main causes of this dissent in those much-disputed regulations of canon law, such as the ban on the ordination of women, the papal primacy of jurisdiction, and in the essential distinction between the clergy and laity and its legal consequences.⁸⁰ Whilst these examples prove to be particularly contested among the Catholics of the northern hemisphere, other legal norms are the source of similar conflicts in other parts of the Catholic world church. The obligation of celibacy for clerics, for instance, is received rather critically among African Catholics who place great store by marriage and parenthood.⁸¹ Voices from Latin America have criticised the canonical norms on parishes, as these norms widely obstruct a fruitful organisation of parish life seeking to respond to the pastoral needs of large Latin American dioceses, such as Andean communities.⁸² Criticism includes the canons on ecclesiastical administration for their obvious European understanding of dioceses as urban organisations with a huge and professional apparatus of modern bureaucracy, a view which is not borne out by reality in many dioceses across the globe.⁸³ These examples certainly show that dissent about the law is neither a uniform phenomenon across the local churches all over the globe nor a phenomenon triggered by the whole body of law, but that it is triggered by certain selective issues, often of ecclesiastical constitutional law. Hecke also notices this, observing that there are many canonical norms which church members neither dispute nor challenge. Indeed, only a small number of legal norms provoke fundamental dissent. Yet this does not help to solve the problem which canon law has with regard to its recognition. Hecke puts forward two pieces of evidence for this. First, many of the legal norms which provoke dissent are so dominant that they overshadow the recognition of other legal norms. This assessment is understandable in the examples Hecke discusses, which mostly relate to constitutional law. If key constitutional issues provoke fundamental dissent, we may hardly expect the legal subjects to acknowledge less central matters of law as worthy of their approval. And it is even less likely that the legal subjects’ potential recognition of these minor regulations might solve the recognition problem of the ecclesiastical legal system as a whole. Hecke therefore suggests that only serious changes in the ecclesiastical constitution and in constitutional law might help to increase the legal subjects’ approval of canon law. The legislator would have to radically reform the legal norms which are currently most controversial to achieve this. Second, Hecke suggests that the uncontested norms of canon law may seldom help with the recognition of canon law as such, as the legal subjects’ approval of these norms is often not a conscious decision in favour of canon law and consequently not an explicit act of recognition. In reality, church members primarily accept those canonical norms which are also norms which are common in other social contexts or in state law. Hence, they need not identify and accept those norms explicitly as canonical norms if they have already accepted them as norms in other contexts.⁸⁴ A few examples serve to support Hecke’s point. Canon law, for instance, regulates that an election is invalid if the number of ballots in the ballot box exceeds the number of voters (see canon 173 §3 CIC/1983). This regulation does not call for an explicit recognition in church, as it applies to elections in the same way elsewhere. Hence, there is also little reason to give the ecclesiastical legislator credit for that piece of regulation. The same applies to the legal norm in the computation of time that the first day is regularly not computed in the total of a time limit (see canon 203 §1 CIC/1983). Church members probably also take it for granted that a sermon should be preached in a contemporary form, “in a manner adapted to the needs of the times” (canon 769 CIC/1983), even if their experience has often proven different—further proof of Luhmann’s thesis of the counterfacticity of law. This regulation on sermons regulates what is self-evident. Adding to this, it has virtually no justiciable content. The legal subjects’ potential approval does not therefore provide these legal norms with any recognition which might be of help in supporting the wider acceptance of canon law. The above-mentioned examples and many others might help to illustrate, on the one hand, that most canonical norms are not in question. On the other hand, however, they show that canon law cannot, or cannot consistently, bank on this fact to solve its problem of recognition. If the recognition of legal norms is not based on their explicit approval, then it is poorly suited to stabilising the legitimacy of the entire legal order, particularly when this order increasingly finds itself under attack as is the case with canon law. And if core regulations, such as constitutional law, which help to structure the church, fail to find approval, then the approval of minor regulations is only of minor value for the issue of recognition. Canon law, in many of the local churches around the globe, has a problem of recognition that is centred in one way or another on the structure of the church as constituted by its constitutional law. It is here that doubts start to crystallise about whether the ecclesiastical legal order is worthy of recognition.

5.2.3 Revelation and Nature

The power issue also comes into play here. Modern legal subjects are suspicious of law based on mere power. Most individuals receive law that is too obviously based on power alone with scepticism. In this respect, it is particularly problematic that the official church tends to justify canon law with the help of validity reasons which in modernity test the sociological limits of legitimacy. Official legal theory differentiates canon law into the law of revelation (“ius divinum positivum”), natural law (“ius divinum naturale”), and mere ecclesiastical law (“ius mere ecclesiasticum”). This is challenging because all of the validity reasons behind these laws can be interpreted as well-concealed power arguments. The acceptance of law based on revelation and nature is called into question because neither revelation nor nature provides norms that are equally convincing to all members of contemporary legal communities. Whoever invokes revelation and nature in plural societies is ultimately destined to use a power argument to provide an overarching standard doctrine which accommodates what is ordered by revelation and what is naturally just. Thus, from a pluralist point of view, revelation and nature frequently serve as a veil for power as a validity argument of the law. Admittedly, the question arises whether this problem affects the church to the same degree. Just because revelation and nature are unsuitable as validity grounds for the law of plural groups does not mean they are equally unsuitable for more homogeneous and uniform groups, such as faith communities. If a group reaches a consensus about what is divinely ordained or can accept natural law on the basis of common conceptions of nature, then any law founded in this way may indeed have significant persuasive power for this group. Taking Ferdinand Tönnies’s differentiation between societies and communities,⁸⁵ we can argue that whilst basing the validity of law on revelation and nature might not be relevant for modern societies, communities might remain open to them. Hence, a community might not merely produce law based on a shared belief in what accords to revelation or nature, but might also expect this law to find the group members’ wide acknowledgement. If we follow this train of thought, it seems fair to assume that in church revelation and nature might indeed serve as convincing grounds for canon law insofar as they derive from a shared faith and a shared understanding of the naturally just. Canonical laws based on a shared understanding of revelation and nature therefore have an excellent chance of finding the church members’ recognition. Yet contrary to what one might expect, we may perceive that many ecclesiastical norms based on revelation and nature are at present struggling with problems of recognition, such as norms on the role of the hierarchy or the role of women in church. This indicates that official concepts of revelation and nature which serve as the foundation of ecclesiastical norms are not based on concepts of faith and morals shared by the whole community. Recognition problems therefore imply that the church is actually more plural than one might believe it to be. The church members, it seems, have rather different understandings of what constitutes revelation and nature and what accords with them in a normative sense. This phenomenon is currently playing out within many local churches. It is becoming ever more difficult to argue that society is diverse, but that the church is a homogeneous and uniform group. In fact, local churches are directly affected by the dynamics of pluralisation issuing from contemporary societies. Their members are members of a pluralist society, too, and are of course not immune to its influence. They bring pluralist ideas of the social and divergent normative ideas into the church. As a consequence, the local churches are increasingly becoming communities in which, despite the unifying bond of a shared faith, plural concepts exist about what accords with God’s will for the church and for humanity. This growing presence of plural opinions about the normative meaning of revelation and nature in the churches is increasing pressure on the official church to justify those of its laws which are based on revelation and nature. Many church members are increasingly doubting the plausibility of the magisterium’s and the legislator’s interpretation of revelation and nature as reflected in the current law of revelation and in natural law. With regard to the law of revelation, they have come to doubt whether those norms which the magisterium and the legislator derive from revelation truly concord with God’s will for God’s church. For the church as a community based on revelation and a shared faith derived from revelation, this is in fact a dangerous situation. Fundamental disagreement on matters of the revelation is no minor issue. It may undermine the community and damage the integrity of the church. It is therefore particularly serious if dissent on law based on revelation turns out not to be a momentary difference of opinion, but an irreversible divergence between the legislator and many legal subjects. If fully irreconcilable, fundamental differences in matters of the revelation and of the law of revelation may divide the church. It is therefore no coincidence that some canonists have gone to considerable lengths not to interpret the statement contained in the Apostolic Exhortation Ordinatio Sacerdotalis,⁸⁶ which once and for all rejects the possibility of women’s ordination, as part of the law of revelation.⁸⁷ Interpreting it as such would be evidence of an insurmountable gulf between the magisterium’s teachings about revelation as positivised in canon law (see canon 1024 CIC/1983) and the view of many church members, particularly in the churches of the global North. However, the Congregation for the Doctrine of the Faith’s 1995 “Response to a Posed Doubt concerning the Teaching Contained in ‘Ordinatio Sacerdotalis’” supports the position that excluding women from ordination is indeed closely connected with the revelation and has to be considered as part of the deposit of faith. Not long ago, the Prefect of the Congregation for the Doctrine of the Faith reaffirmed this view.⁸⁸ This shows that there is major disagreement about core constitutional norms of the church which the magisterium derives from revelation. The validity of norms based on revelation is therefore in dispute, which likewise affects doctrinal and legal norms.

Similarly, many Catholics are no longer taking rulings by the magisterium about what is right according to nature at face value. The magisterium has in no small measure contributed to this state of affairs. The view presented by the papal magisterium in 1968 in the Encyclical Humanae vitae⁸⁹ on the immorality of artificial contraception marked for the churches of the northern hemisphere a turning point in the process of alienation between the magisterium and many church members. It sowed fundamental doubts, especially in Central Europe and North America, about the magisterium’s narrow and Neo-Scholastic understanding of nature.⁹⁰ Today, many church members of the northern hemisphere no longer accept many of those ecclesiastical norms which are grounded in natural law. 2010 and 2021 surveys of German Catholics found that 85% (in 2010) or 82% (in 2021) of respondents rejected the official ecclesiastical teaching on contraception (only 9% or 10% approved of the official position), 79% or 77% were critical of the official teaching on sexual ethics (only 13% in both years found it acceptable), and 68% or 75% rejected the church’s official position on homosexuality (17% or 15% approved).⁹¹ In 2005, William D’Antonio, James Davidson, Dean Hoge, and Mary Gautier conducted a survey of Catholics in the United States called American Catholics Today, which yielded the following results:⁹² 42% of Catholics questioned believed that each individual should decide for themselves whether to remarry after divorce; 22% considered the official ecclesiastical position relevant; 35% considered both positions—their individual belief and the official teaching—to be significant. In the case of artificial contraception, 13% considered the magisterium’s position to be more important, while 61% considered their own opinion more important; here too, 27% considered both positions as relevant. 25% felt the magisterium’s position had a role to play in deciding to have an abortion or not, while 44% believed this issue to be an individual decision; 30% considered a combination of the personal and magisterial positions to be correct. Practiced homosexuality was seen by 46% as a personal decision; 24% followed the magisterial opinion; 28% were open to both views. Extra-marital sex was seen by 47% as a private matter; 22% viewed it as a matter in which the magisterium’s teaching was key; 30% considered both positions significant. As these findings refer to moral norms one may argue that they reveal little about the acceptance of law. Nevertheless, widespread doubts about the magisterium’s teaching on natural law have obvious consequences for positive law based on natural law, too. Accordingly, we may assume that laws cannot hope for much acceptance on the part of the legal subjects if they are based on a magisterial interpretation of nature that the church members find unconvincing.

Hence, today, we can no longer expect the church members to accept canonical laws merely because the legislator connects them with divine law. Grounding law in revelation and nature is therefore evidently as problematic in church as it is in plural societies. As the church becomes an increasingly plural community, it faces similar challenges to plural societies in how to justify its law. In essence, there is no unanimity among church members about what is naturally right or what derives from revelation normatively. So it should come as no surprise when church members’ suspicions are aroused when ecclesiastical authorities, in the absence of any consensus on what is right and just according to revelation and nature, issue sovereign decrees about how to understand revelation and nature and binding norms based on their findings. The church members might come to suspect that these norms are not actually based on revelation and nature at all, but on power. The result is that the very norms of canon law which should in fact integrate the church, as they are supposed to express a shared normative understanding among church members about what is right according to revelation and nature, will end up doing the very opposite. Many church members contest them as absolutist expressions of power and refuse to acknowledge them as legitimate law of the church.

5.2.4 Lacking a Consistent Rule of Law

Certainly, it is not a problem per se to base the validity of legal norms on power. As shown in Sect. 5.1, modern individuals do not object to power as a validity reason of law in itself. However, they do tend to object to power that has not been legitimised. Applying Max Weber’s criteriology to canon law, one may assume that power is considered legitimate in church if it is justified by charisma, tradition, or the law. To this day, power in church is indeed sometimes legitimised by charisma. Many Catholics view the current pope as a charismatic leader and recognise his power because they feel an emotional attachment to him. Thus, they tend to observe norms posed by him because they identify with him. We may likewise discover elements of traditional authority in church. The offices of the pope and of the bishops, with their patriarchal and patrimonial structure, encourage church members to find power in church legitimate for reasons of tradition. However, many present-day church members are no longer convinced by power justified by mere tradition because they, just as other members of plural societies, have developed a modern distrust of mere traditional justifications of power. The idea that tradition is sufficient justification for power to become legitimate authority has been widely replaced by the expectation that power be limited by law and bound by legal procedures. The rule of law as an instrument for curbing power and thus creating legitimate authority through the restriction of pure power has widely replaced charismatic and traditional approaches for legitimating power. We may therefore expect many church members to connect their recognition of ecclesiastical authority with the demand that power in church is subject to the law and to legal control. Legitimising power by subjecting it to the law, in any case, requires more than merely restricting power somehow with the help of law. According to an understanding which is common in democratic societies, the legal limitations of power must substantively accord with the rule of law. Certainly, the church is not a state. One might therefore object that it is necessary to restrict power exercised in church to the same extent as power exercised in secular legislation, adjudication, and administration. However, such objections to introducing a substantive rule of law to the church are in fact of little practical help. From a sociological point of view, which studies the conditions under which church members are factually inclined to recognise authority in church, these interventions are of limited value. Catholics who as citizens of modern democratic states have learned to assess the legitimacy of political power according to the rule of law go on to use these criteria to evaluate power in church. Ecclesiastical authorities may criticise them for doing this,⁹³ but they can do little to stop them. Hence, factually speaking, power in church must submit to standards which accord with common standards of the rule of law to have a chance of being recognised by many church members as legitimate authority. The rule of law in church is therefore subject to similar principles to the rule of law of constitutional states. Many Catholics’ expectations with regard to the law and its ability to control power in church are virtually identical to those they have of the constitutional state. They demand to see the protection of fundamental rights, especially equality in and before the law, as well as fundamental rights that challenge power, such as freedom of speech and freedom of assembly; they demand that the law limits the exercise of power, for instance through the separation of powers, through elections, and limited terms of office; and they request that the law is constrained by procedures, such as control mechanisms and conditional decision-making programmes;⁹⁴ unsurprisingly, we may discover all of these demands when studying the documents of the current so-called “Synodal Path” which the church has taken in Germany to reform the German churches.⁹⁵ A church which follows these principles increases the chance of its members, who have been socialised under the democratic rule of law, accepting power in church as legitimate authority. In the following section I will analyse whether and to what extent these principles are already present in current canon law.

5.2.5 Protection of Fundamental Rights

The rule of law is based first and foremost on the principle of equality and on guaranteed fundamental rights. This is also the case in the legal order of the church. Canon law relies on equality in and before the law. In addition to certain basic obligations, it also provides basic rights which the church members may invoke. The protection of fundamental rights is an element of the canonical rule of law which the ecclesiastical legislator guarantees. Nevertheless, it is evident that the degree of protection the church can offer falls short of what citizens are accustomed to in democratic constitutional states. This becomes visible if we examine a complex of fundamental rights that is important for limiting power under the rule of law, namely freedom of opinion and freedom of speech. Canon law defines both freedom of opinion as well as freedom of expression more narrowly than state law; we may make parallel observations with regard to freedom of religion (see canons 209 §1, 748 §1 CIC/1983) and with regard to freedom of scientific research (see canon 218 CIC/1983). First, freedom of opinion in church is not completely free, but is restricted by legal norms on the teaching function of the church. Catholics for instance are legally obliged to believe doctrines that are part of the deposit of faith (see canon 750 §1 CIC/1983). They are obliged to adhere to doctrines that are marked by the magisterium as being part of definite teaching, but moreover also obliged to firmly embrace and retain them (see canon 750 §2 CIC/1983). In these matters, the church demands an attitude of assent from its members, which legally restricts the free formation of opinion. With regard to the freedom of expression, Catholics are free to express their opinion in an appropriate manner to the ecclesiastical authorities (see canon 212 §3 CIC/1983), but not without restriction and conditional on their knowledge, their competence, and their position in church. Addressing the ecclesiastical public is lawful only if a public utterance does not attack Catholic faith and morals, is made with due reverence towards the church authorities, and preserves the personal dignity of others. Moreover, speakers must assess the general utility of their statement in advance. The law permits academic theologians to publicly share their expertise. Yet it obliges them to ensure when doing so that they are “observing due submission to the magisterium of the church” (canon 218 CIC/1983). Thus, freedom of opinion and expression in church do not stand alone; instead, the law ties them to the obedience which Catholics owe to the church authorities. However, since it is freedom of expression that enables the public to criticise the exercise of power and the authorities in possession of that power—which is highly relevant from the point of view of the rule of law—this restriction is problematic for the legitimation of ecclesiastical power. If the law bars public criticism and widely restricts the right of church members to criticise ecclesiastical authorities, it deprives free speech and public debate of much of its potential to legitimise the authorities’ power. Ladislas Orsy’s complaint that the ecclesiastical legislator does not even solicit the church members’ consent to the law, and instead relies on a premodern structure of command and obedience,⁹⁶ is also of relevance in the light of the legitimation of power. This strategy of limiting freedom of opinion and expression by commanding obedience is widely unsuccessful. But it is also counterproductive with regard to the legitimation of ecclesiastical power. By suppressing dissenting voices, command and obedience feeds the church members’ suspicion that ecclesiastical power could in fact be illegitimate insofar as it seeks to evade public scrutiny. With regard to the protection of fundamental rights and its legitimising significance for the rule of law in church, one may therefore conclude: such protection exists, but to a lesser extent than in state law. This is not only a problem in itself; it is also problematic primarily because restricting fundamental rights in church as in the case of freedom of expression undermines precisely those processes of legitimation that church authorities need in order to be recognised as legitimate.

5.2.6 Abundant Ecclesiastical Power

Ecclesiastical authorities are at present subject to only a few of the typical instruments which the rule of law applies to limit power. Limited terms of office are virtually non-existent. The office of the pope is a life-long position, even if Benedict XVI recently made it clear that, in practice, relinquishing office is an option. Diocesan bishops are required to offer their resignation upon reaching the age of 75 (see canon 401 §1 CIC/1983). Nevertheless, this does not equate to the limitation of tenure in office in the constitutional sense, which regularly limits time in office to a predetermined period. Similar observations apply to the principle of election. Certainly, election plays a role in the attainment of high-ranking ecclesiastical offices, foremost in the case of the pope and also in some regions where the diocesan bishops obtain their office by election—and not in the regular way of free papal appointment (see canon 377 §1 CIC/1983). However, it is not the ordinary church members who participate in these elections, as one might expect in a democracy, but selected representatives of the church hierarchy. The cardinals are responsible for electing the pope; in Germany the cathedral chapters elect the bishops. It would therefore be erroneous to speak of elections in a democratic sense in church. The church is not a democracy. I do not want to address this observation in light of its associated institutional legitimacy issues. However, it is important to note the sociological consequences deriving from the non-democratic constitution of the church with regard to the legitimation of the officeholders’ power. As elections in church do not accord with the rule of law with regard to democratic standards, the election of church officials cannot claim to produce the same presumption of legitimacy as democratic elections. We may not therefore expect them to fully convince church members who have been socialised in the rule of law.

Another important aspect of the rule of law is that legislation, adjudication, and administration are bound by the law. This is a widely accepted principle of constitutional theory. In this light, the absolutist conception of hierarchical government in church raises a number of questions. After all, the structure of the church is still based on models of governance from the early modern period, as Norbert Lüdecke and Georg Bier remind us, “The law of the church is phenomenologically and structurally understood in analogy to the law of the state, although not of the contemporary democratic constitutional state, but of the modern absolutist authoritarian state.”⁹⁷ Accordingly, the diocesan bishops have considerable power, including powers of legislation, adjudication, and administration for their dioceses. Nevertheless their power is also limited, as the Code states, “A diocesan bishop in the diocese entrusted to him has all ordinary, proper, and immediate power which is required for the exercise of his pastoral function except for cases which the law or a decree of the Supreme Pontiff reserves to the supreme authority or to another ecclesiastical authority” (canon 381 §1 CIC/1983). Episcopal power is abundant but restricted in two respects. On the one hand it is functionally limited to the power necessary to exercise the episcopal ministry; on the other hand, it is restricted with regard to competing authorities, insofar as episcopal power is limited by universal canon law and the authority which the law accords to other authorities. Therefore, diocesan bishops are in fact bound by general canon law. The case of the pope is somewhat different. He is a monarch at the head of the church who is bound by morals only and acts autonomously without being bound or restricted by the law.⁹⁸ The pope has at his disposal “supreme, full, immediate, and universal ordinary power in the church, which he is always able to exercise freely” (canon 331 CIC/1983). This indicates that the pope’s power is largely unlimited, something which is also evident in ecclesiastical procedural law, which exempts papal acts from judicial review, following the ancient maxim “The First See is judged by no one” (canon 1404 CIC/1983). Due to this, the question arises as to whether and to what extent the pope is bound by general canon law. He is certainly limited in his official conduct by divine law—canonists agree on this. But I have also already pointed out that divine law only takes on a justiciable form through the exercise of official power. In this respect, divine law proves, on closer inspection, to restrict the pope’s power to a significantly lesser degree than one might initially assume. After all, the pope himself is entitled to define what constitutes divine law. Purely ecclesiastical laws bind him to an even lesser extent. Norbert Lüdecke and Georg Bier provide a lucid explanation of the issue. They believe that the pope is not bound by purely human canon law as he is dominus canonum. As a master of canon law he is above the law. He is therefore free to override the law whenever he deems it necessary.⁹⁹ However, canonist Hubert Socha objected to this reading of the pope’s power.¹⁰⁰ He interposed that the pope’s wide-ranging powers do not give him the option of wielding his power arbitrarily. The pope, as Socha states, is bound by canonical procedural law when acting as a judge, in a form of self-commitment. Nevertheless, this does not alter the fact that it is up to the pope whether to abrogate and reformulate laws he himself or one of his predecessors has made. Lüdecke and Bier, however, reject Socha’s defence of papal arbitrariness. They admit that arbitrariness and pure self-interest should not determine a papacy, insofar as the office of the pope obliges the pope to act consistently in accordance with the rules of his office. The pope is therefore morally bound by the duties of his office, as well as by the revelation and the tradition of the church.¹⁰¹ However, as Lüdecke and Bier also slyly remark, “What is required by the papal office is decided by the pope himself in his responsibility before God.”¹⁰² This includes the pope’s freedom to decide how and in what way to limit his own freedom to act. Georg Bier consequently speaks of a papal “Kompetenz-Kompetenz” (“competence-competence”) as the pope’s authority to determine which authority actually derives from the papal power.¹⁰³ From a sociological perspective we may therefore note that the pope is not bound by general canon law. Regardless of whether canonists agree on this issue or not—there is no legal authority that can prevent the pope from disregarding existing law. The pope may be morally bound to observe the law of the church, but if he chooses not to, he will face no legal consequences for breaking the law. If we recall Max Weber’s theory of the legitimation of power by law, this raises major questions with regard to the legitimation of power in church. Insofar as the highest ecclesiastical authority is not bound by law, it cannot base its legitimacy on the rule of law. The legitimacy of papal power vis-à-vis the members of the church thus succeeds either through charisma, as seems to be the case with Francis for many Catholics, or through tradition—or it does not succeed at all. Inasmuch as modernity relies first and foremost on the rule of law, it is therefore unsurprising that many church members doubt the legitimacy of papal power when a less charismatic pope is at the head of the church than the current officeholder.

5.2.7 Controlling Decision Making

If we examine the decision-making programmes of the church, we may find that decision-making power in church is limited only by a few procedural rules. This is most evident with regard to legislation. In secular law, and particularly in civil law traditions with their strong focus on statute law, constitutional legislative procedures play a key role. Insofar as canon law is civil law and attaches key importance to statute law, one might actually expect highly formalised legislative procedures in church as well. Contrary to expectation, however, sophisticated procedural regulations are largely absent, as Simon Hecke has noted.¹⁰⁴ Although the Code contains some procedural rules for legislation, such as the need for the legislator’s promulgation of ecclesiastical laws in order for them to come into force (see canons 7, 8 CIC/1983), or the regulation that diocesan bishops when acting as legislators for their particular churches have to exercise legislative power themselves—hence, have to issue a law themselves and cannot entrust other officeholders with the duty of legislation (see canon 391 §2 CIC/1983)—, the law does not set out a comprehensive, predefined legislative process. This does not mean, of course, that legislation comes into being informally, as the Code’s provisions on promulgation make clear. However, the fact that canon law does not prescribe a formal legislative procedure and leaves it up to the ecclesiastical legislators to decide how to draft a law and whom to involve in the process of its creation is an obvious deficit from the perspective of the rule of law. It points once again to the problem mentioned above, namely that to this day an absolutist form of governance has been cultivated in church which sits uncomfortably with many legal subjects’ understanding of democratic rule, and is therefore plagued by a deficit of legitimacy. Because canon law is largely silent on procedural formalities, it does little to support the recognition of ecclesiastical legislation. This has a negative knock-on effect for the recognition of canon law as the result of ecclesiastical legislation. It is helpful to refer to Niklas Luhmann’s considerations on programming and programmed decisions once more to better understand why the lack of formal procedures and the insufficient separation of powers are problematic in church. Luhmann argues that programming and programmed decisions differ insofar as they are dissimilarly open to control. Assessing the correctness of programmed decisions is comparatively easy because their correctness is judged on the basis of the existing programmes. One may assume the correctness of a decision if it proves to be the correct result of a programme. This poses a problem in church, insofar as sophisticated programmes are largely absent, as I have stated. However, even if these programmes existed, doubt may still be cast on the correctness of the programmes themselves. Assessing the correctness of programmes is in any case virtually impossible, as Luhmann finds. They are the result of programming decisions, and these are extremely hard to control, as Luhmann observes, noting, “Programming the law takes place … under so much complexity that this in fact excludes adequate information and control of the correctness of decision making.”¹⁰⁵ It is not even possible to use existing norms to prove the rationality of programming decisions, because this would require pre-existing programming. As a consequence, as Luhmann finds, it is only possible to prove the correctness of programming decisions hypothetically. And it remains essential to allow for a change of programming decisions whenever they transpire to require adjustment.¹⁰⁶ This possibility of keeping programming decisions open to change depends, however, on several factors. It depends inter alia on the precondition that a legal community may deal with political conflicts in an institutionally regulated way in order to prevent these conflicts from becoming sclerotic. Luhmann speaks of the “institutionalisation of political conflict as a permissible, system-compatible, and regulated normal process”.¹⁰⁷ This is particularly problematic with regard to the church, which has hardly any predefined structures for political conflict management at all. One might find that ecclesiastical decision-makers are putting the presumption of correctness of their programming decisions at stake insofar as they neither grant the ecclesiastical legal community an insight into these procedures nor provide them with institutional procedures to process political conflicts in church in cases of doubt about these procedures.

5.2.8 Excluding the Laypeople

A further complicating factor confronting the church is how it deals with representation in its function of legitimising decisions. I have already referred to Luhmann’s observation that modern-day individuals tend to accept decisions only if the structures of decision making in principle allow for a consensus and do not exclude anyone in advance. This presupposes that every rational perspective has its legitimate share in the debates and that therefore no point of view may be declared a priori as irrelevant for the decision. Hanna Pitkin’s studies on political representation accommodate this principle by stating that those who are affected by a decision must be represented by the decision-making body in an appropriate manner, which first of all entails that those who compose the decision-making bodies do not omit social groups deliberately from the composition of those bodies whose decisions pertain to them. If decision making fulfils these conditions, decisions stand a fair chance of finding widespread acceptance. However, this finding poses a problem for decisions in church, insofar as it is mostly clerics who serve as members of ecclesiastical decision-making bodies. This is most obvious with regard to legislation. In the 1983 reform of the Code of Canon Law, the last comprehensive legislative project to affect the whole church, the preparatory bodies, the so-called coetus, were mainly composed of clerics, while the decision-making body, the Reform Commission of the Code, was composed exclusively of clerics, namely cardinals and bishops. Lays were given no or next to no say at all—as usual in high-level decision making in church. This is no coincidence, but is ensured by canon law, which reserves the exercise of ecclesiastical power to the clergy first and foremost by reserving offices endowed with the power of governance to clerics (see canon 274 §1 CIC/1983), allowing clerics alone to obtain offices responsible for legislation, adjudication, and administration in church. As a consequence, ecclesiastical decision-making bodies frequently do not represent the laity in the sense of Pitkin’s “standing for”,¹⁰⁸ in which the representatives stand for the key characteristics of those they represent. In the last reform of the Code, all church members were formally represented by the episcopal members of the reform commission. However, as being a layperson may count as an essential characteristic of church members, this formal representation is not representation in the substantial sense of Pitkin’s “standing for.” It is therefore fair to say that the lays are either underrepresented or not represented at all in ecclesiastical decision making. This is a major disadvantage of ecclesiastical decisions with regard to their chances of finding the lays’ acceptance.

One may make a similar observation with regard to adjudication when studying the staffing of ecclesiastical tribunals. According to current canon law, ecclesiastical single judges must always be clerics (see canons 1421 §1, 1673 §4 CIC/1983), even though the bishops’ conference may give permission for collegiate tribunals to consist of two clerics and one lay person (see canon 1421 §2 CIC/1983). This evidently does not give blanket permission to tribunals to rely on lay judges. Their participation is dependent on the vote of the bishops’ conferences, and only in a handful of countries have the bishops’ conferences seen fit to entrust laypeople with such responsibilities. Moreover, it remains essential that a cleric presides over a collegiate tribunal (see canon 1426 §2 CIC/1983). However, as I mentioned in Sect. 3.2.15, in his Motu proprio Mitis Iudex Dominus Iesus Francis introduced the option of appointing two lays to act as judges in matrimonial matters in three-member collegiate tribunals which are presided over by a cleric even without a vote of approval by the bishops’ conference (see canon 1673 §3 CIC/1983).¹⁰⁹ This demonstrates that co-decision making by the laity in ecclesiastical adjudication is being extended slowly but surely. Despite this progress, the law systematically excludes lays from penal proceedings against clerics dealing with allegations of sexual abuse, in which only priests may serve as judges, promotors of justice, and notaries.¹¹⁰ Hence, we cannot consider the current situation as a fair representation of the lays in Pitkin’s sense of representation as “standing for,” as long as judges are selected based on their ecclesiastical status. This practice intentionally underrepresents laypeople in ecclesiastical adjudication and systematically prevents them from presiding over tribunals. From a sociological point of view, this kind of targeted marginalisation of a group may have a counterproductive effect on the acceptance of adjudication and the decisions made by ecclesiastical tribunals. From a sociological perspective, it is unrealistic to expect the laity to support decisions in which they are only marginally or not at all involved, while their participation in the decision-making process was already largely or completely excluded from the outset. The a priori exclusion of the numerically largest group of church members means that canon law does not support presumptions of consensus in the Luhmannian sense. As a consequence, Simon Hecke understandably notes that it is now virtually impossible to claim the existence of a fictitious consensus among the church members with regard to current canon law.¹¹¹ At best, there might be a consensus in selected sections of the church, perhaps among some members of the clergy, but there is no longer even a presumed consensus on the law throughout the church as a whole.

In light of these findings, the strategy used by some church officials of hiding issues of power behind the language of “service” seems rather expedient. It is currently virtually impossible to respond to questions about the legitimacy of ecclesiastical power and the law that springs from it in a way that most legal subjects with a democratic upbringing and from liberal constitutional states might find acceptable. Theologian and sociologist Karl Gabriel notes that the church at present still falls below the minimum of legal certainty and participation which modern-day individuals expect of organisations seeking to recruit and retain their dedicated members.¹¹² At present, the dual relation between power and the law—the generation of power through the law and the generation of law through power—creates a self-sustaining vicious circle in church which proves to be immune to strategies of legitimation which follow the rule of law. The growth of anti-juridism and the crisis of leadership in church are therefore not two separate challenges facing the church in contemporary times, but are actually two facets of the same problem. They result from the view held by many ecclesiastical legal subjects that in the church illegitimate power produces law and illegitimate law recreates power. One may therefore frequently understand criticism of canon law as a criticism of power. Church members refuse to recognise a legal system that, in the view of many, arises from the illegitimate exercise of power. And they refuse to accept power which is recreated and established by that legal system.