The analogy between secular and canon law


  • Arturo Cattaneo Facoltà di Teologia di Lugano (Svizzera)



analogy, univocity, proportionality, juridicity


The question I am dealing with is whether the concept of law, applied to the secular and ecclesial spheres, is univocal or analogical and what kind of analogy it would be. Vatican II has promoted greater attention to the specificity of canon law, anchoring it in the mystery of the Church (cf. OT 16) and thus overcoming the previous philosophical-sociological perspective of the Church as “societas perfecta”, which led to the foundation of law on the basis of the principle “ubi societas ibi ius”. It is therefore not surprising that after the Council several canonists spoke of analogy between the two rights, but without delving into the subject and sometimes using unclear expressions, such as that of “analogical law”. The question is not simple first of all because of the lack of a precise definition of the concept of “law”. Depending on how it is defined, a unique or analogical preaching will be deduced. In the first case, “law” would constitute a genre in which two species are distinguished (secular and canon law) on the basis of specific differences. In the second case, the general term “law” would apply to the two areas (secular and ecclesial), but would acquire essential differences, so that it is necessary to speak of analogy. The hypothesis I propose is that it is a matter of an analogy of intrinsic proportionality, in which “juridicity” constitutes the ratio that is proper (or intrinsic) to the two rights.