Canon law

Canon law (from Ancient Greek: κανών, kanon, a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership), for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church (both the Latin Church and the Eastern Catholic Churches), the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion.[1] The way that such church law is legislated, interpreted and at times adjudicated varies widely among these four bodies of churches. In all three traditions, a canon was originally[2] a rule adopted by a church council; these canons formed the foundation of canon law.

Etymology

Greek kanon / Ancient Greek: κανών,[3] Arabic qaanoon / قانون, Hebrew kaneh / קָנֶה, 'straight'; a rule, code, standard, or measure; the root meaning in all these languages is 'reed'; see also the Romance-language ancestors of the English word cane.

In the fourth century, the First Council of Nicaea (325) calls canons the disciplinary measures of the church: the term canon, κανὠν, means in Greek, a rule. There is a very early distinction between the rules enacted by the church and the legislative measures taken by the State called leges, Latin for laws.[4]

Apostolic Canons

The Apostolic Canons[5] or Ecclesiastical Canons of the Same Holy Apostles[6] is a collection of ancient ecclesiastical decrees (eighty-five in the Eastern, fifty in the Western Church) concerning the government and discipline of the Early Christian Church, incorporated with the Apostolic Constitutions which are part of the Ante-Nicene Fathers.[4]

Catholic Church

In the Catholic Church, canon law is the system of laws and legal principles made and enforced by the church's hierarchical authorities to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the church.[7] It was the first modern Western legal system[8] and is the oldest continuously functioning legal system in the West.[9][10]

In the Latin Church, positive ecclesiastical laws, based directly or indirectly upon immutable divine law or natural law, derive formal authority in the case of universal laws from the supreme legislator (i.e., the Supreme Pontiff), who possesses the totality of legislative, executive, and judicial power in his person,[11] while particular laws derive formal authority from a legislator inferior to the supreme legislator. The actual subject material of the canons is not just doctrinal or moral in nature, but all-encompassing of the human condition,[12] and therefore extending beyond what is taken as revealed truth.

The Catholic Church also includes the main five rites (groups) of churches which are in full union with the Holy See and the Latin Church:

  1. Alexandrian Rite Churches which include the Coptic Catholic Church, Eritrean Catholic Church, and Ethiopian Catholic Church.
  2. West Syriac Rite which includes the Maronite Church, Syriac Catholic Church and the Syro-Malankara Catholic Church.
  3. Armenian Rite Church which includes the Armenian Catholic Church.
  4. Byzantine Rite Churches which include the Albanian Greek Catholic Church, Belarusian Greek Catholic Church, Bulgarian Greek Catholic Church, Greek Catholic Church of Croatia and Serbia, Greek Byzantine Catholic Church,[13] Hungarian Greek Catholic Church, Italo-Albanian Catholic Church, Macedonian Greek Catholic Church, Melkite Greek Catholic Church, Romanian Greek Catholic Church, Russian Greek Catholic Church, Ruthenian Greek Catholic Church, Slovak Greek Catholic Church and Ukrainian Greek Catholic Church.
  5. East Syriac Rite Churches which includes the Chaldean Catholic Church and Syro-Malabar Church.

All of these church groups are in full communion with the Supreme Pontiff and are subject to the Code of Canons of the Eastern Churches.

History, sources of law, and codifications

Image of pages from the Decretum of Burchard of Worms, an 11th-century book of canon law.

The Catholic Church has what is claimed to be the oldest continuously functioning internal legal system in Western Europe,[14] much later than Roman law but predating the evolution of modern European civil law traditions. What some might describe as "canons" adopted by the Apostles at the Council of Jerusalem in the first century would later be developed into a highly complex legal system encapsulating not just norms of the New Testament, but some elements of the Hebrew (Old Testament), Roman, Visigothic, Saxon, and Celtic legal traditions.

The history of Latin canon law can be divided into four periods: the jus antiquum, the jus novum, the jus novissimum and the Code of Canon Law.[15] In relation to the Code, history can be divided into the jus vetus (all law before the Code) and the jus novum (the law of the Code, or jus codicis).[15]

The canon law of the Eastern Catholic Churches, which had developed some different disciplines and practices, underwent its own process of codification, resulting in the Code of Canons of the Eastern Churches promulgated in 1990 by Pope John Paul II.[16]

Catholic canon law as legal system

Roman Catholic canon law is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code,[17] principles of legal interpretation, and coercive penalties, though it lacks civilly-binding force in most secular jurisdictions. One example where conflict between secular and canon law occurred was in the English legal system, as well as systems, such as the U.S., that derived from it. Here criminals could apply for the benefit of clergy. Being in holy orders, or fraudulently claiming to be, meant that criminals could opt to be tried by ecclesiastical rather than secular courts. The ecclesiastical courts were generally more lenient. Under the Tudors, the scope of clerical benefit was steadily reduced by Henry VII, Henry VIII, and Elizabeth I. The papacy disputed secular authority over priests' criminal offenses. The benefit of clergy was systematically removed from English legal systems over the next 200 years, although it still occurred in South Carolina in 1827. In English Law, the use of this mechanism, which by that point was a legal fiction used for first offenders, was abolished by the Criminal Law Act 1827.

The academic degrees in Catholic canon law are the J.C.B. (Juris Canonici Baccalaureatus, Bachelor of Canon Law, normally taken as a graduate degree), J.C.L. (Juris Canonici Licentiatus, Licentiate of Canon Law) and the J.C.D. (Juris Canonici Doctor, Doctor of Canon Law). Because of its specialized nature, advanced degrees in civil law or theology are normal prerequisites for the study of canon law.

Much of Catholic canon law's legislative style was adapted from the Roman Code of Justinian. As a result, Roman ecclesiastical courts tend to follow the Roman Law style of continental Europe with some variation, featuring collegiate panels of judges and an investigative form of proceeding, called "inquisitorial", from the Latin "inquirere", to enquire. This is in contrast to the adversarial form of proceeding found in the common law system of English and U.S. law, which features such things as juries and single judges.

The institutions and practices of Catholic canon law paralleled the legal development of much of Europe, and consequently, both modern civil law and common law bear the influences of canon law. As Edson Luiz Sampel, a Brazilian expert in Catholic canon law, says, canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Indirectly, canon law has significant influence in contemporary society.[18]

Catholic Canonical jurisprudential theory generally follows the principles of Aristotelian-Thomistic legal philosophy.[14] While the term "law" is never explicitly defined in the Catholic Code of Canon Law,[19] the Catechism of the Catholic Church cites Aquinas in defining law as "an ordinance of reason for the common good, promulgated by the one who is in charge of the community"[20] and reformulates it as "a rule of conduct enacted by competent authority for the sake of the common good."[21]

Code for the Eastern Churches

The law of the Eastern-rite Churches in full communion with the Roman papacy was in much the same state as that of the Latin or Western Church before 1917; much more diversity in legislation existed in the various Eastern Catholic Churches. Each had its own special law, in which custom still played an important part. One major difference in Eastern Europe however, specifically in the Eastern Orthodox Christian churches, was in regards to divorce. Divorce started to slowly be allowed in specific instances such as adultery being committed, abuse, abandonment, impotence, and barrenness being the primary justifications for divorce. Eventually, the church began to allow remarriage to occur (for both spouses) post-divorce.[2] In 1929 Pius XI informed the Eastern Churches of his intention to work out a Code for the whole of the Eastern Church. The publication of these Codes for the Eastern Churches regarding the law of persons was made between 1949 through 1958[22] but finalized nearly 30 years later.[4]

The first Code of Canon Law (1917) was exclusively for the Latin Church, with application to the Eastern Churches only "in cases which pertain to their very nature."[23] After the Second Vatican Council (1962 - 1965), the Vatican produced the Code of Canons of the Eastern Churches which became the first code of Eastern Catholic Canon Law.[24]

Eastern Orthodox Church

The Eastern Orthodox Church, principally through the work of 18th-century Athonite monastic scholar Nicodemus the Hagiorite, has compiled canons and commentaries upon them in a work known as the Pēdálion (Greek: Πηδάλιον, 'Rudder'), so named because it is meant to "steer" the church in her discipline. The dogmatic determinations of the Councils are to be applied rigorously since they are considered to be essential for the church's unity and the faithful preservation of the Gospel.[25]

Anglican Communion

In the Church of England, the ecclesiastical courts that formerly decided many matters such as disputes relating to marriage, divorce, wills, and defamation, still have jurisdiction of certain church-related matters (e.g. discipline of clergy, alteration of church property, and issues related to churchyards). Their separate status dates back to the 12th century when the Normans split them off from the mixed secular/religious county and local courts used by the Saxons. In contrast to the other courts of England, the law used in ecclesiastical matters is at least partially a civil law system, not common law, although heavily governed by parliamentary statutes. Since the Reformation, ecclesiastical courts in England have been royal courts. The teaching of canon law at the Universities of Oxford and Cambridge was abrogated by Henry VIII; thereafter practitioners in the ecclesiastical courts were trained in civil law, receiving a Doctor of Civil Law (D.C.L.) degree from Oxford, or a Doctor of Laws (LL.D.) degree from Cambridge. Such lawyers (called "doctors" and "civilians") were centered at "Doctors Commons", a few streets south of St Paul's Cathedral in London, where they monopolized probate, matrimonial, and admiralty cases until their jurisdiction was removed to the common law courts in the mid-19th century.

Other churches in the Anglican Communion around the world (e.g., the Episcopal Church in the United States and the Anglican Church of Canada) still function under their own private systems of canon law.

In 2002 a Legal Advisors Consultation meeting at Canterbury concluded:

(1) There are principles of canon law common to the churches within the Anglican Communion; (2) Their existence can be factually established; (3) Each province or church contributes through its own legal system to the principles of canon law common within the Communion; (4) these principles have strong persuasive authority and are fundamental to the self-understanding of each of the member churches; (5) These principles have a living force, and contain within themselves the possibility for further development; and (6) The existence of the principles both demonstrates and promotes unity in the Communion.[26]

Presbyterian and Reformed churches

In Presbyterian and Reformed churches, canon law is known as "practice and procedure" or "church order", and includes the church's laws respecting its government, discipline, legal practice, and worship.

Roman canon law had been criticized by the Presbyterians as early as 1572 in the Admonition to Parliament. The protest centered on the standard defense that canon law could be retained so long as it did not contradict the civil law. According to Polly Ha, the Reformed Church Government refuted this, claiming that the bishops had been enforcing canon law for 1500 years.[27]

Lutheranism

The Book of Concord is the historic doctrinal statement of the Lutheran Church, consisting of ten credal documents recognized as authoritative in Lutheranism since the 16th century.[28] However, the Book of Concord is a confessional document (stating orthodox belief) rather than a book of ecclesiastical rules or discipline, like canon law. Each Lutheran national church establishes its own system of church order and discipline, though these are referred to as "canons."

United Methodist Church

The Book of Discipline contains the laws, rules, policies, and guidelines for The United Methodist Church. Its last edition was published in 2016.

See also

References

  1. ^ Boudinhon, Auguste. "Canon Law." The Catholic Encyclopedia. Vol. 9. New York: Robert Appleton Company, 1910. 9 August 2013
  2. ^ a b Wiesner-Hanks, Merry (2011). Gender in History: Global Perspectives. Wiley Blackwell. p. 37.
  3. ^ Chisholm, Hugh, ed. (1911). "Canon" . Encyclopædia Britannica (11th ed.). Cambridge University Press.
  4. ^ a b c Metz, René (1960). "What Is Canon Law?". The Twentieth Century Encyclopedia of Catholicism, Section VIII: The Organization of the Church. Vol. 80. New York: Hawthorn Books Inc.
  5. ^ Shahan, Thomas (1908). "Apostolic Canons". The Catholic Encyclopedia. Vol. 3. New York: Robert Appleton Company. Retrieved 9 August 2013.
  6. ^ "The Ecclesiastical Canons of the Same Holy Apostles". Ante-Nicene Fathers, Vol VII. Retrieved 2008-05-26.
  7. ^ Ramstein, Fr. Matthew (1948). Manual of Canon Law. Terminal Printing & Pub. Co., p. 3
  8. ^ Berman, Harold J. Law and Revolution, pg. 86 & pg. 115
  9. ^ Dr. Edward N. Peters, CanonLaw.info Home Page, accessed June-11-2013
  10. ^ Raymond Wacks, Law: A Very Short Introduction, 2nd Ed. (Oxford University Press, 2015) pg. 13.
  11. ^ Canon 331, 1983 Code of Canon Law
  12. ^ Vatican Archive. "Code of Canon Law". Vatican.va. Archived from the original on 20 February 2008. Retrieved 4 January 2014.
  13. ^ "The Other 23 Catholic Churches and Why They Exist". Ascension Press Media. 2019-01-21. Retrieved 2019-12-14.
  14. ^ a b Peters, Dr. Edward, JD, JCD, Ref. Sig. Ap. "Home Page". CannonLaw.info.
  15. ^ a b Ramstein, pg. 13, #8
  16. ^ Blessed John Paul II, Ap. Const. (1990). "Apostolic Constitution Sacri Canones John Paul II 1990".
  17. ^ Ramstein, pg. 49
  18. ^ "canon law." Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition. Encyclopædia Britannica Inc., 2013. Web. 9 August 2013.
  19. ^ Gray, Msgr. Jason. "Home Page". JGray.org. Retrieved 8 June 2013.
  20. ^ In Brief §1976. Catechism of the Catholic Church. USCCB Publishing. 2006. ISBN 9781574557251. Summa Theologica I-II, 90, 4
  21. ^ Catechism of the Catholic Church, The Moral Law§1951
  22. ^ "In 1959, John XXIII, announced for the first time his decision to reform the existing corpus of canonical legislation"https://www.vatican.va/archive/ENG1104/__P1.HTM
  23. ^ Canon 1, 1917 Code of Canon Law.
  24. ^ Ford, Don (June 2007). "Canon Law Research Guide". GlobaLex. Retrieved 2018-04-24.
  25. ^ Patsavos, Lewis J. (2013). "The Canonical Tradition of the Orthodox Church". Greek Orthodox Archdiocese of America. Retrieved 2013-08-09.
  26. ^ Doe, Norman, "The Contribution of Common Principles of Canon to Ecclesial Communion in Anglicanism", The Principles of Canon Law Common to the Churches of the Anglican Communion, London: The Anglican Communion Office, 2008, p. 97.
  27. ^ Ha, Polly (2010). English Presbyterianism, 1590-1640. Stanford University Press. ISBN 9780804759878. Retrieved 2013-08-09.
  28. ^ Bente, Friedrich., ed. and trans., Concordia Triglotta, (St. Louis: Concordia Publishing House, 1921), p. i

Further reading

  • Baker, J.H. An Introduction to English Legal History, 4th edn. London: Butterworths, 2002.ISBN 0-406-93053-8
  • Beal, John P., James A. Coriden, & Thomas J. Green. New Commentary on the Code of Canon Law. New York: Paulist Press, 2000.
  • Brundage, James A. The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts. Chicago: University of Chicago Press, c2008.
  • Brundage, James A. Medieval Canon Law. London/New York: Longman, 1995.
  • Coriden, James A. An Introduction to Canon Law, revised edn. New York: Paulist Press, 2004.
  • Coriden, James A., Thomas J. Green, & Donald E. Heintschel, eds. The Code of Canon Law: A Text and Commentary. New York: Paulist Press, 1985.
  • Coughlin, John J., O.F.M. Canon Law: A Comparative Study with Anglo-American Legal Theory. Oxford: Oxford University Press, 2010.
  • Della Rocca, Fernando. Manual of Canon Law. Trans. by Rev. Anselm Thatcher, O.S.B. Milwaukee: The Bruce Publishing Company, 1959.
  • The Episcopal Church. Constitution and Canons, together with the Rules of Order for the Government of the Protestant Episcopal Church in the United States of America, otherwise known as The Episcopal Church. New York: Church Publishing, Inc., 2006.
  • Hartmann, Wilfried & Kenneth Pennington, eds. The History of Medieval Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX. Washington, D.C.: The Catholic University of America Press, 2008.
  • Hartmann, Wilfried & Kenneth Penningon, eds. The History of Byzantine and Eastern Canon Law to 1500. Washington, D.C.: The Catholic University of America Press, 2011.
  • R. C. Mortimer. Western Canon Law. London: A. and C. Black, 1953.
  • Nedungatt, George, ed. (2002). A Guide to the Eastern Code: A Commentary on the Code of Canons of the Eastern Churches. Rome: Oriental Institute Press. ISBN 9788872103364.
  • Robinson, O.F., T.D. Fergus, & W.M. Gordon. European Legal History, 3rd edn. London: Butterworths, 2000.ISBN 0-406-91360-9
  • Ulanov, M. S., Badmaev, V. N., Holland, E. C. Buddhism and Kalmyk Secular Law in the Seventeenth to Nineteenth Centuries. Inner Asia. no. 19. P. 297-314.
  • Wagschal, David. Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883. Oxford: Oxford University Press, 2015.
  • Witte, John, Jr. & Frank S. Alexander, eds. Christianity and Law: An Introduction. Cambridge: Cambridge University Press, 2008.
  • Hovhannes, Otsnetsi (2010). Hakobyan, Vasken (ed.). The book of canon law (PDF). Burbank: Western Diocese of the Armenian Church. On Armenian Oriental canon law.

External links

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Anglican

Media files used on this page

Scale of justice, canon law.svg
Author/Creator: Ktr101, Licence: CC BY-SA 3.0
Balanced scales of justice, with Holy See emblem overlaid.
046CupolaSPietro.jpg
Author/Creator: MarkusMark, Licence: CC BY-SA 3.0
Città del Vaticano - Cupola della Basilica di S. Pietro
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Scales icon
Extract from Burchard of Worms' Decretum.jpg
Detail of a page of a manuscript of the Decretum of Burchard of Worms (early 11th century). The text was edited by Migne in PL 140.[1]

The manuscript is not identified, and the decorative "border" was probably added by an image manipulation program.

The corresponding passage can be found on fol. 163v of Dom Hs. 119 (Cologne).

The particular passage shown here is from book 19, chapter 5. The left column is a fragment of a passage on gluttony and inebriety, the right column of a passage on neglect to take the eucharist and another on superstitious belief in magic or witchcraft. In Migne's edition:

[De gula et ebrietate.] Habuisti in consuetudine ut plus comederes et biberes quam tibi necesse esset? Si fecisti, decem dies in pane et aqua poeniteas, quia Dominus dicit in Evangelio: «Videte ne graventur corda vestra in crapula et ebrietate.» Bibisti unquam tantum, ut per ebrietatem vomitum faceres? Si fecisti, quindecim dies poeniteas in pane et aqua. Inebriasti te unquam per jactantiam, ita dico ut gloriareris in hoc quod alios in potu vincere posses. et sic, per tuam vanitatem et per tuam exhortationem, te et alios ad ebrietatem perduxisti? Si fecisti, triginta dies poeniteas in pane et aqua. Fecisti vomitum corporis et sanguinis Domini propter ebrietatem? Si fecisti, quadraginta dies in pane et aqua poeniteas. Si per nequitiam alium inebriasti, XX dies in pane et aqua poeniteas. Si per bonam voluntatem, X dies in pane et aqua poeniteas.
[De irreligiositate.] Neglexisti ut non acciperes corpus et sanguinem Domini, istis quatuor temporibus, id est in coena Domini, et in Pascha, et in Pentecoste, et in Natali Domini, et totam Quadragesimam non te sustinuisti a coitu, et postea in aliis praedictis temporibus aut septem dies, aut quinque dies ante acceptionem sacri corporis Domini? Si ista neglexisti, XX dies in pane et aqua debes poenitere. Sprevisti missam vel orationem, vel oblationem conjugati presbyteri, ita dico ut nolles tua peccata sibi confiteri, vel ab eo accipere corpus et sanguinem Domini, ob hoc quia peccator tibi esse videretur? Si fecisti, unum annum per legitimas ferias poeniteas.
[Item de arte magica.] Credidisti aut particeps fuisti illius incredulitatis, quod quaedam sceleratae mulieres retro post Satanam conversae, daemonum illusionibus et phantasmatibus seductae, credunt et profitentur se nocturnis horis cum Diana paganorum dea, et cum innumera multitudine mulierum equitare super quasdam bestias, et multa terrarum spatia intempestae noctis silentio pertransire, ejusque jussionibus velut dominae obedire, et certis noctibus ad ejus servitium evocari? Sed utinam hae solae in perfidia sua perissent, et non multos secum in infirmitatis interitum pertraxissent! Nam innumera multitudo, hac falsa opinione decepta, haec vera esse credit, et credendo a recta fide deviat, et in errore paganorum volvitur, cum aliquid divinitatis aut numinis extra unum Deum esse arbitratur. Sed diabolus transformat se in diversarum personarum species atque similitudines, et mentem, quam captivam tenet, in somnis deludens, modo laeta, modo tristia, modo incognitas personas ostendens, per devia quaeque deducit, et cum solus spiritus hoc patitur, infidelis mens haec non in animo, sed in corpore evenire opinatur. Quis enim non in somnis et nocturnis visionibus extra seipsum educitur, et multa videt dormiendo quae nunquam viderat vigilando? Quis vero tam stultus et hebes sit qui haec omnia, quae in solo spiritu fiunt, etiam in corpore accidere arbitretur? Cum Ezechiel propheta visiones Domini in spiritu, non in corpore, vidit et audivit, sicut ipse dicit: «Statim, inquit, fui in spiritu.» Et Paulus non audet se dicere raptum in corpore. Omnibus itaque publice annuntiandum est quod qui talia et his similia credit, fidem perdit: et qui fidem rectam in Deo non habet, hic non est ejus, sed illius in quem credit, id est diaboli. Nam de Domino nostro scriptum est: «Omnia per ipsum facta sunt, et sine ipso factum est nihil.» Si credidisti has vanitates, duos annos per legitimas ferias poeniteas.

This particular passage was apparently featured in the "Wine Literature of the World" because it prescribes penances for inebriety. 15 days' penance of bread and water if the inebriety was enough to make the drinker vomit, 40 if it causes the vomit after the Sacrament of the Holy Eucharist, 30 days for whom induce other people to inebriation, 20 day if inebriety is caused by debauchery of this persons, and 10 in the case of their good faith.