Canon Law
Canon Law
Medieval canon law and political thought
The term “canon law” usually refers to the law of the Roman Catholic and Orthodox churches, although it is sometimes applied analogically to the law of other religious groups, particularly Islam. The word “canon” is derived from the Greek k?v?v, meaning a rule or measure (originally an architectural instrument), and it has been used in several senses. The canon of sacred Scripture is the body of those sacred writings that have received official approval as divinely inspired. The decrees of the church councils are also known as canons; a saint is canonized when he is placed on the official list or canon of the saints, and a member of a cathedral chapter in the Anglican and Roman Catholic churches is called a canon. (Originally the term applied to all priests on the official list of a bishop.)
Early collections
The body of law known as canon law developed out of the collections of canons of the early church councils. The first such collections were made in the Eastern church beginning with the Council of Nicea (a.d. 325). A collection of Apostolic canons supposedly dating from the time of the apostles but actually much later in origin (fourth century) had great authority in the East. The collection made by the Council of Constantinople, In Trullo (a.d. 691), and 22 canons from the Council of Nicea that were added to it in a.d. 787 form the basic texts for the canon law of the Greek and Russian Orthodox churches.
In the West, however, the collections made by Dionysius Exiguus around a.d. 500 were the first important texts of canon law. They included the canons of the ecumenical councils held in the East (omitting one adopted at Chalcedon that equated the patriarch of Constantinople and the pope), 50 of the Apostolic canons, the canons of the councils held by the north African church, and 39 papal letters or decretals containing interpretations of doctrine made by popes of the fourth and fifth centuries. Another collection, the Hispana, made in Spain in the seventh century, also included the decrees of councils held in Gaul and Spain as well as many more papal decretals. In the ninth century, the pseudo-Isidorean or false decretals, supposed to have been collected by St. Isidore of Seville (560?636), drew on this collection and added apocryphal letters said to have been written by the popes in the first three centuries. Subsequent collections in the West in the period between the ninth and twelfth centuries began to be organized on an analytical rather than chronological basis, and the collection of Yves de Chartres made in 1095 gave rules for the interpretation of conflicting canons.
Around 1240 a new collection was published that was a systematic attempt to use Yves’s method to analyze and harmonize the conflicting elements in the conciliar decrees, papal decretals, and writings of the church fathers that had appeared in previous collections. Attributed to Gratian, a Bolognese monk, its original title was the Concordantia discordantium canonum (“Concordance of Discordant Canons”), but it is usually referred to as the Decretum (“Decree”). While it was never officially endorsed by the papacy, it formed the basis for the teaching and study of canon law in the West for many centuries and was included in the corpus of canon law along with the later official collections, the decretals of Gregory ix (1234), the Liber sextus (“Sext”) of Boniface viii (1298), and the Clementinae of Clement v (1317). Two further unofficial collections complete the medieval texts—the Extravagantes of John xxII and the Extravagantes communes of the later popes of the fourteenth and fifteenth centuries. Together these collections form the body of law that governed the Roman Catholic church down to the twentieth century, when Pope Benedict xv issued a formal code of canon law in 1917.
Medieval canon law and political thought
The writings of the canon lawyers in the three centuries that followed the publication of the Decretum are of special interest to the social scientist, particularly to the student of political theory. In the thirteenth century, canon law became the object of specialized study in the new universities of western Europe, and the questions that were discussed by the “decretists,” as the commentators on the Decretum were known, and the “decretalists,” or commentators on the later collections of papal decretal letters, included many of the fundamental problems of political thought and institutions. Since the ablest intellects were attracted to the church as a career, and the church’s legal system developed rapidly in this period, it is not surprising that the solutions that they gave to these problems have had a lasting influence on Western political thought. The “civilians,” or commentators on the civil, i.e., Roman, law were also active in this period, and the two groups influenced each other (it is still possible today in Europe to receive a doctorate in “both laws”—the degree of j.u.d., juris utriusque doctor), but the important writing on most questions was done by the church lawyers in the glosses they wrote on the texts of the Decretum and the decretals, and in their summae, or general treatises, on the canon law.
Papal sovereignty
In the hands of the canon lawyers, the claims of the papacy to supremacy over the Christian church were steadily expanded by judicious selection of materials and by interpretation of the texts in the glosses. For example, where an earlier text referred to the selection of a bishop by the prince or the cathedral chapter, a canonist commentator inserted after the reference to the prince the words “of the church, that is, the pope.” In another instance, where Pope Innocent iii (1198?1216) had claimed the right to intervene in temporal matters casualiter, “incidentally,” the canonist who became Pope Innocent iv (1243?1254) added the word saltem, “at least,” thereby claiming a much broader papal jurisdiction. Probably the best known of the canonist attempts to buttress the claims of the papacy was the appeal to the spurious Donation of Constantine—the alleged transfer of the western empire by Constantine to Pope Sylvester in gratitude for his cure from leprosy. The account of the donation was included among the forgeries in the pseudoIsidorean decretals, and although it was not mentioned by Gratian, it was inserted as a postscript to a section of the Decretum by his pupil, Paucapalea. Attempts were also made to claim jurisdiction for the burgeoning system of ecclesiastical courts not only over doctrinal matters but also over wills, marriages, widows, orphans, usury, contracts, and treaties (on the grounds that an oath was involved). The furthest extensions of the claim for papal legal supremacy included in the canon law were Innocent iv’s claim to be ordinary judge (judex ordinarius) over all mankind and the bull Unam sanctam of Boniface viii, which claimed both the “material and spiritual swords” for the pope. Some decretalist commentators, however, went still further and claimed for the pope the right to grant dispensations from the requirements of the natural law (Ullmann 1949, chapter 3).
Recent research (see especially Tierney 1955) has compelled a revision of the earlier view of the canonists as mere apologists for the papacy. Gratian had included in the Decretum the statement by Pope Gelasius (492?496) that there are two powers by which the world is governed, and it strained the logical powers of the canonists to reduce this dualism to unity—although some were able to do so. In the Decretum too was the specific statement (distinction 40, chapter 6) that the pope was subject to judgment by the church “if he is found to have departed from the faith.” The increasing legalization of relationships that had assisted papal centralization and expansion also resulted in a more precise analysis of the relations of the pope and other bodies within the church and led to an exploration of the cases in which the church could assert control over an errant pope. Thus, although some canonists identified the pope and the church so completely that it was impossible for the church to act against him, the analysis by the decretalists of the relations of the head (rector) and members of an ecclesiastical corporation (universitas) paved the way for the claim by later conciliarist writers with a canonist background (e.g., John of Paris, Henry of Langenstein, Franciscus Zabarella, and Nicholas of Cusa) that the church as a whole had a corporate right to act against its head in certain cases.
The development of corporation theory was recognized in the nineteenth century by Otto von Gierke as a significant contribution of the medieval canonists to political and legal thought, although Gierke’s theories about the real personality of corporate groups led him to criticize their views as inadequate. In a statement that was to have ramifications for American constitutional law (the Slaughterhouse Cases), Innocent iv described a corporation as a fictitious person (persona ficta) and recognized that it could be represented in legal action. The thirteenth-century and fourteenth-century canonists discussed how the corporation could act and thereby became involved in problems of consent, representation, and election.
Representation
A century earlier, Gratian had stated that the prelate was the representative of his church, but this representation was considered a personal one rather than the result of any corporate act. However, by the thirteenth century the popes were calling on corporate groups in the church to elect representatives to such meetings as the Fourth Lateran Council in 1215, with full powers to bind those who had elected them. The exercise of this right to elect representatives by ecclesiastical corporations in turn influenced theories of the representation of corporate communities in the emerging parliamentary institutions in England, France, and Spain. The interaction of canonist and secular law was facilitated by the fact that those engaged in administration (the clerks) were at least in minor orders (and therefore clerics). Ernest Barker (1913) has tried to develop a more direct relationship between the theory and practice of representation in the Dominican order and the development of the English parliament, noting especially the action of Simon de Montfort, a friend and possible pupil of the Dominicans, who called on the towns to send representatives to the parliament of 1265. This theory has been criticized by historians, but it is not necessary to be as specific as this in tracing the influence of canonical thought, since there was and had been a general borrowing of ecclesiastical concepts and practices both in England and on the Continent for at least a century. (For further details, see the essays collected in Post 1964.)
Consent
A similar development can be observed in canonical theories of consent to corporate action. Particularly on questions of the disposition of ecclesiastical property, the canonists spelled out the cases in which the consent of the cathedral or monastic chapter was necessary to actions by the bishop or abbot, the rector of the corporation. They distinguished between cases involving the corporate group as a whole, for which consent was required, and those involving the head of the corporation alone, for which he was required only to seek counsel. In this connection, the discussion of the precept “What touches all, should be approved by all” was of great importance for the history of democratic thought. Originally found as a Roman legal principle governing the rights of guardians and of those who shared a common source of water, it was given a broader extension by the canonists in their attempts to define the rights of the members of a corporate group, and in 1298 it was incorporated as one of the rules for the interpretation of the canon law in the Liber sextus of Boniface VIII. It was also cited by the Italian city-states in the thirteenth century to assert a right to participate in legislation, and its most famous use was by Edward i in the summons to the Model Parliament in England in 1295. (It should be noted that Edward would not have recognized a right to withhold consent, only to haggle about terms.) The conciliar theorists of the fourteenth and fifteenth centuries appealed to the maxim to assert a right of consent by the council to ecclesiastical legislation. The commentators on Gratian’s Decretum also discussed popular consent to legislation when they glossed distinction 4, chapter 3 of the Decretum, which states that “laws are confirmed when they are approved by the custom of the people using them.”
Elections
The canonists were obliged to discuss electoral procedures, since many of the church officers, including the pope, were chosen by election. While it was recognized that elections could be unanimous, acclamation following divine inspiration, the normal method was to take a vote (per scrutinium). However, a simple majority did not suffice, for the maior pars also had to be sanior (sounder), a requirement originally contained in the Benedictine rule and extended to all episcopal elections by the Fourth Lateran Council in 1215. In the mid-thirteenth century, Pope Gregory X decided that a vote in which the prevailing side was twice as large as those opposed—a two-thirds majority—could be assumed to fulfill both the requirements of numbers and merit. This decision was incorporated in the Liber sextus (C. 9, I, 6) in 1298 and extended to episcopal elections a requirement that had already been applied to the election of the pope in the twelfth century (1179). Subsequently, the two-thirds requirement found its way into the proceedings of many deliberative bodies, but its origin seems to be the canonistic requirement of approval by the maior et sanior pars.
Reason of state
The canon lawyers also helped to develop the modern conception of reason of state. The term ratio status was, of course, Roman in origin, as were many of the legal and political concepts of the canonists. The status of the church and the “reason of the utility of the church” were often appealed to, both to limit the pope when he was conceived to be acting against the interest of the church and to extend his power in cases of “necessity,” when the requirements of the church demanded it. Thus the pope could give dispensations from church law (although not from articles of faith) when “necessity” required it, but he could never act against the status of the church. Secular rulers also could take action on the basis of necessity, especially in waging just wars in which the reason of the matter (ratio rei) made it necessary to fight for the defense of the fatherland. In such cases, the canonists also recognized that the church had to contribute taxes to the common defense.
Natural law and equity
The ideas of natural law and of jus gentium, or the law of the peoples, contained in the opening passages of Justinian’s Institutes were reflected in the canonist discussions. The canonists tended to reject Ulpian’s definition of natural law as what nature has taught all animals and to confine it specifically to man. However, the fact that at the beginning of the Decretum Gratian defined natural law as that which is contained in the Mosaic Law and the Gospels created some confusion, and the natural and divine law are not as carefully distinguished in canonist writings as they are by St. Thomas Aquinas in his discussion in the Summa theologica (2, 1, question 91). The canonists also borrowed the Roman conception of aequitas in the interpretation of the law, and this became an important influence on English law, when, beginning in the fourteenth century, it became the guiding principle of the court of the lord chancellor, usually a clergyman, whose decisions were based on equity rather than on the common law.
Authority and legitimacy
Although all authority was considered to be derived ultimately from God, the canon lawyers adopted the Roman law theory that the authority of the emperor was derived from an original transfer by the people. Even before the introduction of Aristotle’s Politics to western Europe, the canonists accepted government as a natural institution and recognized the legitimacy of infidel rulers. (See the documentation in Tierney 1964, chapters 3 and 6; and Post 1964, pp. 521?535.) However, they were still concerned with justifying papal intervention, and they therefore argued that papal excommunication made it necessary for the people to withdraw from their ruler and that the pope alone, as vicar of Christ, had full power over all men, including infidel rulers.
Legislation
When so much legislation was being made by the pope, it is easy to understand why the canon lawyers were also the first in the medieval period to recognize the role of lawmaking in government. As early as the Decretum the pope’s right to make new laws was clearly stated, and in 1163 Pope Alexander III stated that “new ills demand the discovery of new medicines.” The theory that law was “found, not made” in the Middle Ages reflects neither papal practice nor the canon lawyers’ understanding of its meaning.
The same thing can be said about the medieval myth of a universal empire. In the same decretal in which he asserted the right to intervene “incidentally” in temporal affairs, Innocent in observed that “the king [of France] recognizes no superior in temporal affairs” (Per venerabilem 1202). This text was included in the decretals of Gregory ix and gave the decretalists an opportunity to comment on the claims of the European kingdoms to be independent of the jurisdiction of the Holy Roman Empire.
The theories of the clerical legal writers in the golden age of canon law, from the twelfth to the beginning of the fifteenth century, profoundly influenced the political thought of the West. Their discussions of papal sovereignty and the rights of the church, of election, representation, and consent, of the state, nature, and law, influenced the theory and practice of secular government and developed and refined many of the most important conceptions of Roman law.
Canon law in modern religions
Roman Catholicism
Canon law in the Catholic church in recent years has aroused less interest on the part of social scientists. In addition to the collections that formed the Corpus juris canonici until its codification in this century, church law also included papal laws or constitutions, the authoritative opinions of papal congregations, and the decrees of the Council of Trent and the First Vatican Council. Since 1918, this legislation has been superseded by the code of canon law, although the decrees of the Second Vatican Council should certainly be included in any listing of the basic law of the church, along with papal decrees and official definitions of dogma after 1918, such as that on the Assumption of the Blessed Virgin in 1950. The apostolic constitution of Vatican ii, De ecclesia, marks a reversal of the general process over the last millennium of centralization of authority and explicitly associates the bishops with the pope in the government of the church (the principle of collegiality), affirming that this right belongs to the bishops by virtue of their succession to the “college of the apostles” (and not derivatively from the pope).
Although the code of canon law has reorganized and systematized the law of the Roman Catholic church, it maintains continuity with the earlier legal texts. (Gratian’s Decretum alone is cited 8,400 times.) Like the earlier texts it is concerned with the internal government of the church, the qualifications for priests and members of the hierarchy, the administration of the sacraments, and the maintenance of a system of ecclesiastical justice. The sanctions at its disposal include excommunication—cutting off the violator of the law from the corporate life of the church, especially from participation in the sacraments; suspension—prohibition of a church officer from exercising his office; and interdict—the cessation of worship and the administration of the sacraments in a given geographical area. A system of church courts administers the code, culminating in the judicial bodies of the sacred congregations, especially the Sacred Roman Rota in Rome. The legalistic emphasis in much of Roman Catholic theology and moral teaching was much criticized at the Second Vatican Council; an attempt is being made to reduce the influence of the legal approach in these areas, but in a hierarchical church with a legal tradition of many centuries, it is evident that canon law will continue to play a major role.
Protestantism
Canon law does not have a significant position in the Protestant churches; in fact, the excessive legalization of the church was one of the abuses against which the reformers reacted. In a symbolic act to demonstrate this, Luther burned the Corpus juris canonici in front of the church at Wittenberg, denouncing the canon law as “heretical, anti-Christian, and unnatural.” However, all Protestant denominations have basic creeds or statements of faith that might be compared to the dogmatic canons of the church councils, and most of them have constitutions or bylaws that set forth the organization of local, regional, or national groupings variously called synods, jurisdictions, conferences, assemblies, or conventions.
Unlike the Roman Catholic example, the Protestant governing bodies invariably include lay representatives. For those denominations, such as the Baptists or Congregationalists, in which the basic unit of church organization is the local congregation, a highly developed system of church law is seen as an infringement of the autonomy of the individual congregation. Some central group is necessary, however, for such activities as the organization of the foreign missions, but in theory the local congregation is the final authority. For the Presbyterians, the presbyteries, the synods, and the General Assembly are higher bodies with judicial power, and the way in which their judicial proceedings are to be conducted in the Presbyterian church in the United States is prescribed in The Book of Discipline, first adopted in 1788 but often revised and amended since. The Methodist church has its Doctrines and Discipline, which has a section on judicial administration that specifies procedures for the trial of bishops and preachers and establishes a judicial commission to be elected by the quadrennial General Conference. The Episcopal church in the United States is closer to the Roman Catholic system both in terminology and substance. Its Constitution and Canons can be amended by a triennial General Convention composed of a House of Bishops and a House of Deputies, the latter including both clergy and laymen.
In the case of the Church of England, there is, in theory, a continuity with medieval canon law. However, by the Act of Submission of 1532, the English clergy agreed not to make any new canons without royal permission and to authorize a commission to reorganize the existing church law. In 1604, 141 new canons were drawn up and approved by the church convocations and the king. Other efforts at reform, however, ended in failure. In the intervening centuries most of the medieval canon law has been ignored, and Parliament has steadily reduced the jurisdiction of the church courts, successively abolishing the benefit of clergy (the right of clergymen to be tried in church courts), the practice of tithing, and control by church courts over wills, marriages, and the affairs of the laity. Since 1919, the assembly of the Church of England, made up of bishops, clergy, and laity, has acquired some autonomy in legislating for the church, but all major decisions must nevertheless be approved by Parliament. [SeeChristianity.]
Judaism
In Judaism, the ceremonial and legal precepts of the Bible, particularly those contained in the Pentateuch or Torah, were also developed and interpreted by the great rabbis shortly before, and for several centuries after, the beginning of the Christian era. At first these interpretations were transmitted orally; only later were they committed to writing in the Talmud (teaching). The Talmud is divided into two sections: the Mishnah, a collection of decisions on the interpretation of the laws contained in the Torah, and the Gemara, which is a later commentary on the contents of the Mishnah. Since there is no central legislative authority in Judaism, the Talmud should be compared with the canonist commentaries rather than with the canon law itself. For orthodox Jews, it has great authority, but the modern reform movement has tended to give the Talmud much less attention. [SeeJudaism.]
In the modern state of Israel, canon law plays an important and controversial role. The conservative religious parties are committed to the establishment of Jewish religious law as the sole law of the state. Their opposition has been one of the principal reasons that Israel has not adopted a written constitution, and they have been responsible for the application of several religious laws. For example, only kosher food may be imported into Israel; Jewish dietary laws are observed in the army; the Sabbath is officially recognized, and neither the railroads nor shipping operates on that day. Most important, rabbinical courts have sole jurisdiction over all Jews in matters of marriage, divorce, alimony, and wills, and the determination of a person’s status as a Jew is made by these courts on the basis of religious law.
Some of these practices have been criticized by the secular parties, particularly the application of a marriage law that clearly discriminates against women. While there have been proposals to convene the Sanhedrin to modernize the law, there is some doubt as to how this can be done. In addition to the archaic character of some of its provisions, the fact that the religious parties are in a minority in Israel makes it unlikely that they will succeed in extending greatly the jurisdiction of religious law.
Islam
The Islamic legal system, as contained in the Koran and its subsequent interpretations, is not called canon law, but it fulfills many of the same functions and has undergone a similar evolution. The Koran contains some six hundred verses with ethical content and eighty on legal topics. These are considered to be the basis of Islamic law and to have eternal and immutable validity. Polygamy is permitted, and divorce is possible by simple dismissal by the husband and a prescribed waiting period. Drinking of wine is forbidden, and games of chance are discouraged.
Severe penalties, including death by stoning and cutting off a hand or foot, are laid down for sexual offenses, theft, and apostasy. A fast is commanded in the month of Ramadan that is so strict that nothing may pass the lips between sunrise and sunset. A religious tax, the zakat, is imposed on the faithful, and they are commanded to “obey God, his apostle, and the established authorities” (Sura 14, 59, 83).
During the three centuries after the death of Muhammad, the Islamic conquests spread the knowledge of the Shariyah (way) of Allah over the Middle East and north Africa and into Spain. Legal specialists commented upon the commands and prohibitions contained in the Koran, and the possible ethical and legal implications of cases from the life of the Prophet. By about a.d. 900 all essential questions of interpretation had been settled, and four schools of interpreters had emerged with varying emphases on each of the four sources of legal interpretation—the literal Koran, tradition, the agreement of the people, and analogical reasoning.
The ulama, or legal scholars, authorized Muslim rulers to make changes in the law in cases of necessity, but in reality two systems of law emerged: one, public and criminal law, under the control of the ruler and based on custom and his decrees; and the other, private and religious law, the object of study by ulama, who were roughly equivalent to the canon lawyers in the West but even more important, since there was no priesthood. The latter system was chiefly concerned with regulating family life, inheritance, and religious ritual in accordance with the Koran as interpreted by the great legal schools. The judges, or kadis, of the Islamic courts that applied this law were drawn from the ulama, although the ruler retained ultimate control and the right of review of their decisions.
From the tenth to the twentieth century, Islamic law underwent no significant development, and the ulama relied on the jurisprudence developed in the first three centuries of Islam. In the twentieth century, with the emergence of modern Islamic states in the Middle East and north Africa, an effort is being made to modernize its provisions, but this is often opposed by the traditionalist ulama. However, the Koranic rules on inheritance have been modified by the governments of Pakistan, Syria, and Iraq, and in Tunisia an attempt is being made to change many of the provisions of Islamic law by appealing to principles of interpretation that would lead to the abandonment of polygamy and of the fast of Ramadan and bring about a stricter legal regulation of divorce. Another alternative is to reject the whole system of Islamic law as Atatürk did in Turkey. More commonly, synthesis and adaptation of Islamic and Western law are being attempted, and such institutions as Al Azhar University in Cairo continue to train students in Islamic law with the support of the modernizing Islamic states in the Middle East and north Africa. [SeeIslam.]
A common element of all canon law systems is their literalism—the insistence on the observance of the letter of the law combined with an elaborate exegesis to determine its exact meaning. This can be understood if one recalls that the original texts that are being interpreted are usually considered to be divinely inspired. Yet at the same time, under the guise of interpreting the law, the commentators have often developed and changed its meaning. The canon lawyers have profoundly influenced the life, culture, and politics of their societies—at least in cases, as in medieval Europe and the Islamic world, where those societies are overwhelmingly of a single religious persuasion. In the pluralistic world of the West, canon law continues to exert an influence on the clergymen and adherents of the religious groups in which it plays an important role.
Paul E. Sigmund
[Relevant material may be found inNatural Law; Religion; and in the biographies ofAquinas; Gierke.]
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