Ecclesiastical law is the law which governs the organization and activities of the church. It is a complex legal order with norms from different sources. The church is both an article of faith (“one, holy, catholic, and apostolic church”) and a religious organization active in society and therefore in need of legal and contractual capacity in the legal order of the state. There are three main types of systems of relationship between church and state in the modern free democratic constitutional states: (a) establishment, (b) separation in which the church has the status of a public body, and (c) separation in which the church has the status of a private organization. The state regulates the place of the church in society according to one of these typical systems. The internal legal order of the Eastern Orthodox Church is called canon law. It is based on the canons (‘guidelines’, ‘rules’) of the councils of the early church. The Eastern Orthodox Church is, in confessional terms, the church of the seven ecumenical councils. Its doctrine and canon law are bound by the decisions of the seven ecumenical councils of the early church:
- Nicaea I (325)
- Constantinople I (381)
- Ephesus (431)
- Chalcedon (451)
- Constantinople II (553)
- Constantinople III (680-681)
- Nicaea II (787)
According to the Eastern Orthodox view the ecumenical councils manifest the universal church confessed in the Niceno-Constantinopolitan Creed. They are the highest authority to decide matters concerning creed, doctrine, and discipline in the universal church. The Eastern Orthodox Communion is consequently the denomination which remains faithful to the seven ecumenical councils. Since the internal legal order of the church is an expression of its faith, religious freedom requires that the liberal democratic state of a free society grants the church autonomy in its internal matters and involvement in matters common to both the church and the state. The internal legal order of the church is above all a moral force that binds its members as participants of the church’s faith. But the liberal democratic rule of law exists to protect citizens’ autonomy; therefore, canon law is only binding for the members of the church. Religious freedom also gives people the right to give up their membership in the church as a religious organization in the state. (Although theologically speaking it is impossible to give up one’s baptism into the church as an article of faith.) The force of canon law is from the perspective of the modern democratic state based on the autonomy of its citizens. The modern democratic state’s claim to legitimacy is based on popular sovereignty and this requires the state to respect and protect the autonomy of its citizens (e.g., religious freedom).
The basic norm of canon law is the belief in God’s self-revelation through Jesus Christ and the Holy Spirit. Canon law in the Eastern Orthodox Church is derived from revelation and the spiritual authority which Jesus Christ gave to the apostles and their successors, the bishops.
Canon law is composed of (a) divine tradition, (b) apostolic tradition, and (c) ecclesiastical tradition. Divine tradition is the foundation of norms derived directly from revelation: “To the married I give this command – not I but the Lord” (1 Corinthians 7.10 NRSV). Apostolic tradition is the foundation of the norms derived from the ministry of the apostles: “To the rest I say – I and not the Lord” (1 Corinthians 7.12 NRSV). Ecclesiastical tradition is the foundation of norms derived from the ministry of the episcopacy and ecclesiastical custom.
Ecclesiastical tradition has no right to change the divine or apostolic tradition. But these are theoretical concepts that the theology of canon law and the ecclesiastical jurisprudence use to interpret normativity and legitimacy in canon law. The sources of canon law contain norms derived from these three traditions. But the sources of canon law cannot literally be equated with divine tradition, apostolic tradition, and ecclesiastical tradition. The texts of the sources of canon law must be interpreted. The theology of canon law seeks to determine the legitimacy (divine, apostolic, or ecclesiastical) of the various norms of canon law. Ecclesiastical jurisprudence seeks to determine the interpretation and application of the sources of canon law. Canon law is consequently both theological and juridical.
Sources of canon law
The sources of canon law consist of the canons (corpus canonum) received by the classic Byzantine canonical collections. These sources of canon law are divided into four groups:
- A. Canons of the ecumenical councils
- Nicaea I (325): 20 canons
- Constantinople I (381): 7 canons
- Ephesus (431): 8 canons
- Chalcedon (341): 30 kanones
- Quinisext council (691): 102 canons
- Nicaea II (787): 22 canons
- B. Canons of local councils
- Ancyra (314): 25 canons
- Neocaesarea (ca. 319): 15 canons
- Gangra (340): 21 canons
- Antioch (341): 25 canons
- Serdica (343): 20 canons
- Laodicea (380): 60 canons
- Constantinople under Patriarch Nectarius (394): 2 canons
- Carthage (419): 133 canons
- Protodeutera council (861): 17 canons
- Hagia Sophia (879-880): 1 canon
- C. Canons of the church fathers
- Dionysius of Alexandria (247-265): 4 canons
- Peter of Alexandria (300-311): 15 canons
- Gregory of Neocaesarea (240-270): 12 canons
- Athanasius the Great (328-373): 3 canons
- Basil the Great (370-378): 92 canons
- Gregory of Nyssa (372-ca 395): 8 canons
- Gregory the Theologian (372-ca. 390): 1 canon
- Amphilochius of Iconium (374, 400): 1 canon
- Timothy of Alexandria (381-385): 18 canons
- Theophilus of Alexandria (385-412): 14 canons
- Cyril of Alexandria (412-444): 5 canons
- Gennadius of Constantinople (458-471): 1 canon
- Cyprian of Carthage (248-258): 1 canon
- D. Canons attributed to the apostles
- Pseudepigraphic apostolic (fourth century): 85 canons
The Quinsext council is treated by orthodox canonists as a supplement to the sixth ecumenical council or to the fifth and sixth ecumenical councils. The Quinisext council legislated primarily for the Byzantine church and several of its decisions were rejected by the Western church. The Quinisext council ratified a collection of canons (conciliar, patristic, and so-called apostolic). The seventh ecumenical council also ratified these sources of canon law. The Protodeutera council and the council of Hagia Sophia took place after the seventh ecumenical council and are therefore not ratified by any ecumenical council, but they were received by the classic Byzantine collections of canon law.
Principles of interpretation
The sources of canon law are from a period stretching from third to the ninth century. In order to interpret these sources Eastern Orthodox ecclesiastical jurisprudence uses the following principles of interpretation:
- Grammatical interpretation. What is the meaning of the legal source?
- Teleological interpretation. What is the purpose of the legal source?
- Historical interpretation. What is the historical context of the legal source?
- Systematic interpretation. What is the relationship of the legal source to other legal sources?
Hierarchy of norms and conflicting norms
The four groups of canons constitute a hierarchy of norms. The classic Byzantine canonists applied the Roman law principles lex superior (a higher norm repeals a lower) and lex posterior (a subsequent norm repeals an older). This means that the norms derived from the ecumenical councils repeal norms from local councils. Norms from local councils repeal norms of the church fathers. The pseudepigraphic apostolic canons ought to be equated with the canons church fathers in the hierarchy of norms. Within each group of the hierarchy of norms a newer norm repeals an older, but a newer norm in a lower group cannot repeal an older norm in a higher group in the hierarchy.
The use of canons
The purpose of canon law is to ensure the mission of the church – the salvation of souls. Canons are, therefore, not applied in a purely formalistic way in the case of an individual person. Those who enforce canon law must have a sound judgment in order to ensure that canon law remains faithful to the mission of the church. Eastern Orthodox canon law has two ways to use the canons: (a) akribeia (‘rigor’, ‘precision’, ‘strictness’) and (b) oikonomia (‘governance’, ‘leadership’, ‘dispensation’). Akribeia means using the formally valid canons in a case. Oikonomia means abstaining from using the formally valid canons in a case when this would result in consequences contrary to the mission of the church. The use of oikonomia requires spiritual discernment and a theological analysis.
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