Ius Divinum and Canonical Positivism

Abstract

In this article I argue that if we want to understand the core of legal positivism in canon law, it is not sufficient only to take into consideration the legal-philosophical criterion based on the question of the separability or the necessary connection between law and meta-juridical content, such as morality or, in the field of canon law, divine-salvific reality. It is necessary to complement that criterion with another one, which is based on the central positivist thesis according to which all law is humanly posited law. The article analyzes the juridical status of meta-positive content of ius divinum, both natural and positive, in the main currents of canonical science in the period of both codifications. It is suggested that tendencies towards canonical positivism may be found in those descriptions of ius divinum which make its juridicity dependent on the reception of its content in posited canonical norms, or on the social fact of unanimous practice of those who are vested with authority to identify and recognize law in the Church.