For a rule to become a rule of law, it must be legally valid. For a law to become a legal law, it must be legally valid. Similarly, a valid rule is a rule and an invalid rule is not a rule. This chapter deals with the legal validity of the rules. The first section explains the nature of the legal validity and the validity of the rules. The chapter also discusses systemic validity, showing that the justification for legal validity is compatible with dependence on factual sources. In addition, the other difficulties of the conception of justification in the interpretation of detached legal systems are examined and validity in the context of positivism is discussed. Marcus Tullius Cicero (106–43 BC) was a politician, philosopher, orator and lawyer. Ciceros de Legibus (The Laws), De Officis (On Duties) and De re Publica (The Republic) strongly influenced the tradition of natural law. Cicero liked Plato and Aristotle. Although Cicero was not a Stoic, he adopted the divine nature of Stoicism as the source of the rules of natural law that dictate legal validity. The stories of Herodotus, Thucydides, Xenophon and Polybius convinced Cicero that natural law imposes justice on human events. Natural law theory emphasizes the moral dimension of law.
Natural law theory recognizes universal moral principles as the primary source of valid law. These moral principles provide a standard of legal validity that imposes moral limits on the coercive powers of the ruler. Major natural law theorists include Aristotle, Cicero, Justinian, and Thomas Aquinas. Legal positivism is also unconvincing and insists on a narrow philosophical method for formulating its standard of legal validity. Hart emphasizes „a purely analytical study of legal concepts, a study of the meaning of the distinctive vocabulary of law.“ (Hart, 1958, p. 601). He describes any law as consisting of only two kinds of rules. Hart`s simplistic legal model is inadequate for three reasons. Callicles said that what people call „righteous“ only expresses what men think is to their advantage. Legal conventions in democracies wrongly elevate the weak over the strong. The majority of weaker people formulate laws to their advantage, to prevent the stronger ones from gaining an advantage over them.
The true nature of the law is determined by nature, not by men, and the law of nature establishes the law in the strong. Natural justice provides that the better and wisest man should rule over more and have more than the inferior. So the power is fair. All animals and all human races recognize the law as sovereignty and the advantage of the strongest over the weaker (Plato, Gorgias, 483b-d, 490a). We should not underestimate the difficulty of reforming important legal norms under the watchful eye of a critical legal community, not even in the Church. Simon Hecke points out that while canon law, including norms based on divine law, has been constantly and sometimes unpredictably renewed throughout history, the contemporary context makes it much more difficult to change norms, not because of the challenges posed by legal changes per se, but because of the public perception and evaluation of these changes. As with state law, it is virtually inconceivable that changes to important canonical norms would go unnoticed today. The public interest is simply too great. The ecclesiastical legislator therefore also has the task of ensuring that he modifies legal norms so that subjects of law can adapt their expectations to the new norms and experience as few disappointments as possible.
A very recent example illustrates this difficulty. When Francis, with the help of the papal law Traditionis custodes, suspended his predecessor`s regulations on the ancient Latin Tridentine liturgy a few months ago (note 60), this legislative change, which affected the liturgy as a public action of the Church, did not go unnoticed. Many traditional Catholics were outraged. Some groups are currently calling for opposition to the law and are even considering a split after their great disappointment with the papal law. From a sociological point of view, this example shows that legal reform can have serious effects on a legal community, even legal reforms carried out with the express intention of avoiding further divisions between antagonistic groups within a legal community, such as liberal and conservative Catholics in the Catholic Church, as was foreseen with the guardians of Traditionis. However, while the recent papal legal reform of the liturgy has deeply disappointed some legal entities, others have welcomed the same reform as an urgent and necessary step towards the reform of the Church. Many Catholics would also support further reform measures. Most German Catholics, for example, would welcome any initiative by the legislature to abolish celibacy for the clergy (see Canon 277 §1 CIC/1983). While there are certainly church members in Germany who consider celibacy useful for the clergy, an overwhelming number of German Catholics would welcome its abolition. Footnote 61 Similarly, they would welcome amendments to the Ordination Act with regard to gender equality (see 1024 Canon CIC/1983), footnote 62 and the opening of offices with the power to govern the Church to the laity (see Canon 274 § 1 CIC/1983). Therefore, these important and similar legislative changes that would profoundly affect the organization of the Church would not disappoint too many Catholics – at least the churches of the northern hemisphere. However, despite a slight disappointment, the transition from the old to the new law may prove difficult due to the challenge of maintaining the stability of the ecclesiastical legal system during the transition process, as Simon Hecke suspects.
Since a legislator willing to abandon important legal provisions gives the impression that other standards can also be changed, a radical change could undermine the stability and sustainability of the law, Hecke points out. Changes to essential rules can therefore have a destabilizing effect on a legal system as a whole or on essential parts of the law. And this could have a strong impact on the legal community, as the change also touches on related identity issues, as the example of the Traditionis custodes shows. A community that suspects the law and structures built on the law of instability could lose faith not only in the law itself, but also in the community as a source of identity. In this context, it is not surprising from a sociological point of view that ecclesiastical authorities currently prefer a strategy of immunization and resistance to the reform of canon law. Hecke explains: „What I touch collapses,“ Franz Kafka noted in one of his octave notebooks. The Catholic Church therefore refrains from „touching“ canon law with reformist intentions of all kinds. Footnote 63 And even if the Church touches on the law, as happened recently with the reform of canon criminal law, the changes are rather minimal. While the reform of canon criminal law published in June 2021 was presented to the ecclesiastical public with great fanfare, it was actually a lot of noise – not much, to say the least.
The fact that „touching“ individual norms can trigger processes of decadence that affect the entire order or individual parts of it is a glimpse that the sociology of law has inherited from general sociology. It coincides with the domino effect principle, or the so-called broken window theory, as developed by sociologists James Wilson and George Kelling in the 1980s. Footnote 64 Even a small pulse, such as a broken window, is often enough to set off a destructive chain reaction; This principle is established in organizational sociology as well as criminology. The broken window theory also refers to changes in the law, especially when the legal system or a legal issue is already under pressure. Deleting sections of an already attacked order can lead to its partial or complete collapse. A thought experiment could help illustrate this phenomenon in canonical terms. For the foreseeable future, Church regulations excluding women from ordination could serve as an example of how changing one legal norm could create a domino effect that would bring down other norms as well. Canon 1024 CIC/1983, which limits ordination to men, is, after all, a legal provision that has come under considerable pressure in the Church, as described above. If the diaconate for women becomes a reality, as is (still) currently being discussed, this „touch“ of a single provision could have profound consequences for the entire ordination of women. A reform of the diaconate law would most likely have a long-term impact on women`s access to the priesthood and episcopate.
Although the Magisterium and legislators have asked for dogmatic and juridical clarifications that draw a clear distinction between the diaconate, on the one hand, and the priesthood and episcopate, on the other,Footnote 65 it can be assumed that a reform of the conditions for admission of the diaconate will ultimately lead to calls for further legislative changes concerning the priesthood and episcopate. also. If the highest authority of the Church is willing to review the law of the diaconate, it seems inconceivable that it can do so while definitively excluding the female priesthood and the episcopate from the debate. I am not writing this as a call, but simply as a plausible description of a possible reality. The fact that I am obviously not alone with these assessments, however, shows the already cautious reactions of many hierarchical members to the diaconate for women. Their hesitation can be interpreted as factual doubt. However, it could also be motivated by the desire to initiate processes of disintegration not triggered by changes, which would affect the ordination laws and the clergy in general.
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