Sources of canon law
Already Cicero used the water-metaphor of a source or font (fons) to describe law. In classic legal dogmatics the concept of legal source is divided into material or constitutive sources and formal or documentary sources. The former denotes the sources which create the norms of a legal order while the latter denotes the documents in which the norms are found.
Constitutive sources of canon law
The famous nineteenth century canon lawyer Nikodim Milaš recognizes the following constitutive sources of Eastern Orthodox canon law: Sacred Scripture, sacred tradition, ecclesiastical legislation, custom (or canonical praxis), secular laws, and the doctrine of the canonists.
The norms derived from Sacred Scripture, and partially also sacred tradition, may be further divided into: precepts of the Lord (i.e., Old Testament norms), precepts of Christ, and precepts of the apostles. The Old Testament norms which are accepted are mostly the Decalogue and the marriage impediments from Leviticus 18. (It should, however, be noted that Eastern Orthodox canon law did not use the Old Testament concept of family and marriage but rather superimposed the Old Testament marriage impediments on the Greco-Roman concept of family and marriage.) Some Old Testament norms were also received by canon law through allegorical interpretation, i.e., institutions of the Old Testament were re-interpreted as prefiguring institutions of the church and consequently some Old Testament norms were received through this allegorical re-interpretation (e.g., marriage impediments of the priests from Leviticus 21:7 applied to those in holy orders).
Documentary sources of canon law
The documentary sources of canon law are the collections of canons and ecclesiastical laws. The most important of these are John Scholastikos’ Synagoge in 50 titles, Nomokanon in 50 titles, Syntagma in 14 titles, Nomokanon in 14 titles, Synopsis of canons by Stephen of Ephesus and Symeon Logothetes, and Matthew Blastares’ Alphabetical Syntagma. These collections transmit various canons issued by councils and patristic authors as well as the ecclesiastical legislation by the Byzantine emperors.
The various classic collections of canon law do not have a completely uniform corpus canonum. There are some small variations in which councils are included and which patristic canons. But the corpus canonum ratified by the Quinisext council with the addition of the canons of the seventh ecumenical council as well as the two Photian councils (Protodeutera and Hagia Sophia) are today seen as the basic corpus canonum of Eastern Orthodox canon law.
The corpus canonum is usually ordered in three or four categories: the so-called apostolic canons, the conciliar canons (or divided into canons of ecumenical councils and canons of local councils), and patristic canons. The pseudepigraphic apostolic canons should from a philological perspective be included in the category of patristic canons, but since they were accepted as genuine apostolic canons by some canonists during the middle ages they came to constitute their own category in the corpus canonum.
- Ecumeincal councils
- First ecumenical council
- Second ecumenical council
- Third ecumenical council
- Fourth ecumenical council
- Quinisext council in Trullos.
- Seventh ecumenical council
- Local councils
- Council of Ancyra
- Council of Neocaesarea
- Council of Antioch
- Council of Serdica
- Council of Laodicea
- Council of Gangra
- Council of Carthage
- Council of Constantinople
- (Protodeutera council)
- (Council of Hagia Sophia)
- Patristic canons
- St. Dionysius of Alexandria
- St. Peter of Alexandria
- St. Gregory of Neocaesare
- St. Athanasius the Great
- St. Basil the Great
- St. Gregory of Nyssa
- St. Gregory of Nazianzus
- St. Amphilochios of Iconium
- Timothy of Alexandria
- Theophilos of Alexandria
- St. Gennadios of Constantinople
- St. Cyprian of Carthage
- “Apostolic” canons
Interpretation of canon law
A distinction must be made between a private and an authentic (or authoritative) interpretation. An authentic interpretation (e.g., the (re-)interpretation of earlier norms by the Quinisext council and seventh ecumenical council) are binding by the authority of the interpreter (in the example an ecumenical council) while private interpretations (e.g., the classic Byzantine canonists or the Pedalion) are only binding so far as the reasons and arguments in favor of the interpretation are valid. The three classic Byzantine canonists are the twelfth century canonists Alexios Aristenos, John Zonaras, and Theodore Balsamon.
The rules of interpretation of the canons are: (a) grammatical interpretation, i.e., what does the text mean; (b) teleological interpretation, i.e., what is the purpose of the text; (c) historical interpretation, i.e., what is the historical context of the text; and (d) systematic interpretation, i.e., how does the text relate to other texts which treat the same topic.
Norms must further be categorized according to their extension. Do they extend to the whole church (i.e., an universal law) or only a part of the church (i.e., a particular law)? Do they extend to all persons (i.e., a general law) or only one category of persons (i.e., a special law)?
John Zonaras developed a principle inspired by Roman law to deal with conflicting norms, namely that the latest norm enacted by the highest authority (an ecumenical council is a higher authority than a local council, but a local council is a higher authority than a patristic author) is in force (i.e., the principles of lex superior and lex posterior). Theodor Balsamon used a similar principle but held that imperial legislation could derogate conciliar legislation.
Canon law and secular law
It should be noted that the Eastern Orthodox Church, which was the established church of the Byzantine empire, did not perceive itself as a sovereign organization (societas perfecta) equal to the state and which had a relationship with the state within the context of international law (ius gentium) but rather as an autonomous organization which had a relationship with the state within the context of public law (ius publicum); hence imperial legislation could be used to fill voids and gaps in the legal order of the church, as an organization of public law, as long as this legislation was not contrary to Sacred Scripture, sacred tradition, and the decrees of the ecumenical councils. The Byzantine imperial legislation on church matters is today only a subsidary source although some of the norms have been re-enacted by conciliar legislation (mostly in the canons of the Quinisext council and the seventh ecumenical council).
Canon law in use
The law in force in most Eastern Orthodox Churches today has been codified in the form of a church order or ordinance based on the Eastern Orthodox canonical sources. The canons are consequently not always used directly in the canonical praxis but rather indirectly through a codified church order which is legitimized as a particular codification of norms derived from the common Eastern Orthodox corpus canonum.
The competent authority to apply canon law is a synod of bishops or the local bishop or someone authorized to act in the place of the bishop in specific cases (e.g., a spiritual father, monastic superior, or dean). In relation to the application of canon law the somewhat elusive concept of oikonomia must be mentioned. Oikonomia may be described as the power not to apply the canons for good reasons in a specific cases.
The application of norms in canon law follow the ordinary form of legal reasoning: (a) to determine whether a specific case is regulated by a norm; (b) to determine whether there are circumstances which will modify the application of the norm in the specific case; and (c) a decision in the specific case.
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