56 Jurist 41 (1996)
Ius Divinum between Normative Text, Normative Content, and Material Value Structure

handle is hein.journals/juristcu56 and id is 51 raw text is: THE JURIST 56 (1996) 41-67

On the level of ecclesiastical legal theory a formal doctrine of law
must be accompanied by a doctrine of legal content that questions the
legal, dogmatic treatment of the current law, as well as the fundamental
orientations of its content, something to which the positive content of
law is indebted. The Jubilarian has expounded in numerous publica-
tions on various aspects of a canonical doctrine of legal content, espe-
cially with regard to the interpretation of ecclesiastical legal norms.
This article is dedicated to Professor Ladislas Orsy in respectful ap-
preciation of his outstanding merits. Its goal is to relate the material
foundation of law (values) to the category of ius divinum, and on that
basis, to illustrate the status of the normative text in relation to nor-
mative content in the current law.
The argumentation does not employ a phenomenological method in
approaching the various values that provide or should provide a foun-
dation for the norms of current ecclesiastical law. Rather, it seeks to
contribute to a deeper understanding of the underpinnings of canon law
as far as its content is concerned. This substratum of content should be
recognized as a basis for the legal institutes, legal norms, and particular
decisions of ecclesiastical law. Consequences for the dogmatic and
political sides of ecclesiastical law follow naturally from an analysis of
canonical legal theory since a judgment about positive law always
corresponds to a philosophical and theoretical legal judgment, and vice-
versa.' Given the size of this article, the wealth of implied problems
permits the presentation of only a general survey.
* J.D. (Linz, 1974), J.C.D. (Lateran University, Rome, 1981). Ordinary Professor
for Canon Law, University of Passau.
1 GUnther Winkler, Wertbetrachtung im Recht und ihre Grenzen (Vienna:
Springer, 1969) 39f.

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