Abstrakt

The Christian concept of natural law is built on the foundations laid down by such protagonists as Paul of Tarsus, Saint Augustine or Saint Thomas. The first one believed that law of nature had been inscribed in human nature by the Creator. However, it was St. Augustine who explained the Christian concept of natural law. In his reflections he began with the act by which God had created man. According to St Augustine a man, created as a reflection and a living picture of God, became law for himself, doing the right things. Despite the fact that human nature has been contaminated by the original sin, a man feels natural law as a longing for the original condition.
Saint Thomas based his meditations on the need for noticing the division between natural order and supernatural reality. It allowed him to define law of nature as a human participation in the immemorial law of God, and as a component of sensible (rational) human nature. Saint Thomas indicates direct relation between positive law and natural law. Positive law is a derivative of natural law and it has to be congruent with it.
Christianity has been accompanied by the awareness of ceaselessly existing nature until the present century. Despite a strong influence of positive legal philosophy on Law of the Church, church legislator referred to natural law in the Canon Law Code from 1917. As early as in canon 6 point 6 it was declared that the present Code does not cancel natural law. Also no tradition can do it (canon 27 p. 1). However, in the old Code we can find few specific references between canon law standards and natural law.
After the second Vatican Ecumenical Council church sciences, especially the science of canon law, became more interested in natural law. Then profound reforms within the Church were undertaken. The most important one referred to the understanding of the Church itself because its hitherto existing image was denied. The Church was no longer perceived as a state entity, a perfect community. The Mystery of the Church was noticed. During the Second Vatican Ecumenical Council the Church was defined as a Salvation Sacrament. The notion of a sacrament carries a crucial feature which characterizes the Church as a specificity of Its sign. The Church is a real sign, i.e. it not only points out at some kind of reality but it also embraces it. Here we mean the presence of God in life of the Church.
Such perception of the Church led not only to the reform of church law but it also brought change in understanding of its function within the Church. The law in Church is derived from religious experience. A baptized man is on the one hand presented with life based on the love of God and other people. On the other hand the believer is required to live in truth and to testify the truth. This requirement is a duty and it has been perceived by Christians as such from the very beginning.
Being given the grace of living in the love community and the call to testify the truth, is fundamental for the fulfilment of law within the Church.
The positive law of God is a fundamental source of the church law. Pope John Paul II has already reminded us of it in his latest encyclical Veritatis splendor. He points out there that the law of God is a basic law for the Church, it is essential for its constitution. It contains elements which the church cannot abandon, something it cannot relinquish, forget, or change. The law of God, however invariable it is, can be recognized, depending on the civilized development of man, his scientific background and cognitive abilities. Under the present Code, church legislator often quotes the law of God, making use of the following expressions: ius divinum, lex divina, institutio divina, ordinatio divina, or relevant verb forms.
The Pope maintains traditional distinction between positive and natural law within the God's law. Both are reflections of the immemorial law. Natural law was given to man in the act of creation. Practical mind takes active part in the process of discovering the rules of natural law. It derives its authority from God's Wisdom. The light of natural mind which allows to distinguish between good and evil is a reflection of the light of God. The natural law got its name because mind, which announces it, is a part of human nature. However, natural law is a secondary source for the canon law.
In the presently binding Code the legislator refers to natural law more frequently than in the previous one. First of all he quotes such rules of natural law that can be regarded as axiological foundation of the canon law. Here he means freedom, equality and canon equity. The essence of aequitas naturalis is a complement of ideas such as: caritas or aequitas canonica. Natural equity allows to refer to particular human values such as: honesty, kindness, natural justice or simplicity. The legislator quotes the natural equity in canon 271 p. 3. The provisions of agreement made between bishop of a place where priest was ordained and bishop of where the priest works, have to be kept. Even if the conditions forced the bishop a quo to recall his priest to work in the diocese, natural equity does not allow to break the provisions of the agreement. Canon 1148 p. 3 describes the effects of a polygamous marriage, which was dissolved because of the husband's baptism. The man should remain with one wife, however it does not release him from his obligations resulting from his previous relationships.
In the present Code, the rules of freedom were applied to the idea of religious freedom and freedom of conscience. In canon 784 it has been declared that nobody can be forced to adopt Catholic Faith. Therefore, people who have never been baptized or those of a different creed cannot be forced to accept Catholicism, but even the Catholics who have decided to split with the church community cannot be pushed in any way. Such understanding of religious freedom has its roots in the Vatican Ecumenical Council II. The ecumenical fathers explain the right to religious freedom as something that has deep roots in human nature. Human dignity requires a man to follow his conscious choice. Canon 218 recognizes the freedom of search conducted by the theologians, canonian scholars and dogmatists. They are, however, burdened with a duty to be obedient to the Tutorial Church Office. Ideas related to the freedom of conscience can be found in canon 748. They originate from the teachings of the Ecumenical Council and from the Pope. It is important that the church does not violate the freedom of conscience when it comes to questions of faith and morality. Canon 630 p. 1 burdens the Superiors of Monastic Institutes with the duty to maintain freedom to receive sacraments and spiritual guidance. Canon 799 obliges the church authority to provide upbringing consistent with their parents' conscience.
The rule of equality has a special importance in relation to the Church. The Church, in its nature, is a hierarchized community. That is why, in canon 208, church legislator decides that all the believers are equal in terms of dignity and activity. However, there is a difference when it comes to the church mission – everybody performs a different function (laymen and priests). Different levels of hierarchy apply especially to the clergymen. But all the believers participate in the same priesthood of Christ. In the present Code we can find other applications of the equality rule. Equality between a man and a woman manifests itself in the fact that a woman can be appointed a judge auditor (canon 1428 p. 2) or associate judge (canon 1424), etc.. Only holy orders are reserved for men. In the present canon law the difference between legitimate and illegitimate children is eliminated (canon 1139).