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Canon law--which in its wider sense includes precepts of divine law, natural
or positive, incorporated in various canonical collections or codes--is in this
article defined as that body of rules and regulations (canons) concerning the
behaviour and actions of individuals and institutions within certain Christian
churches, which have, through proper ecclesiastical authority, defined and
codified such rules. Though canon law is historically continuous from the early
church to the present, it has, as a result of doctrinal and ecclesiastical
schisms, developed differing, though often similar, patterns of codification and
norms in the various churches that have incorporated it into their
ecclesiastical frameworks. The canon law of the Eastern and Western churches was
much the same in form until these two groups of churches separated in the Schism
of 1054. In Eastern Christianity, however, because of doctrinal and
nationalistic disputes during the 5th to 7th centuries, several church groups
(especially non-Greek) separated themselves from the nominal head of Eastern
Christianity, the patriarch of Constantinople, and developed their own bodies of
canon law, often reflecting nationalistic concerns. (see also Index:
Roman Catholicism, Eastern Orthodoxy)
Canon law in the Western churches after 1054 developed without interruption
until the Reformation of the 16th century. Though other churches of the
Reformation rejected the canon law of the Roman Catholic Church, the Church of
England retained the concept of canon law and developed its own type, which has
acceptance in the churches of the Anglican Communion.
Canon law has had a long history of development throughout the Christian Era.
Not a static body of laws, it reflects social, political, economic, cultural,
and ecclesiastical changes that have taken place in the past two millennia.
During periods of social and cultural upheaval the church has not remained
unaffected by its environment. Thus, canon law may be expected to be involved in
the far-reaching changes that have come to be anticipated in the modern world.
A church is defined as a community founded in a unity of faith, a sacramental
fellowship of all members with Christ as Lord, and a unity of government. Many
scholars assert that a church cannot exist without authority--i.e.,
binding rules and organizational structures--and that religion and law are
mutually inclusive. Thus the calling of a church leader to office is regarded as
important in the organizational structure and, like every other fundamental
vocation in the churches that accept the validity of canon law, it is also
viewed as sacramental and as linked to the priesthood--which, in turn, involves
a calling to leadership in liturgy and preaching. According to Roman Catholic
belief, the mission of the college of Apostles (presided over by Peter in the
1st century AD) is continued in the college of bishops, presided over by the
pope. Other churches may accept this view, without at the same time accepting
the authority of the pope. The validity of canon law thus rests on an acceptance
of this sacramental view and of the transmitted mission of the Apostles through
the bishops. (see also Index: apostolic succession)
Canon law has functioned in different historical periods in the organization
of the church's liturgy, preaching, works of charity, and other activities
through which Christianity was established and spread in the Mediterranean area
and beyond. Canon law, moreover, had an essential role in the transmission of
Greek and Roman jurisprudence and in the reception of Justinian law (Roman law
as codified under the sponsorship of the Byzantine emperor Justinian in the 6th
century) in Europe during the Middle Ages. Thus it is that the history of the
Middle Ages, to the extent that they were dominated by ecclesiastical concerns,
cannot be written without knowledge of the ecclesiastical institutions that were
governed according to canon law. Medieval canon law also had a lasting influence
on the law of the Protestant churches. Numerous institutions and concepts of
canon law have influenced the secular law and jurisprudence in lands influenced
by Protestantism: e.g.,
marriage law, the law of obligations, the doctrine of modes of property
acquisition, possession, wills, legal persons, the law of criminal procedure,
and the law concerning proof or evidence. International law owes its very origin
to canonists and theologians, and the modern idea of the state goes back to the
ideas developed by medieval canonists regarding the constitution of the church.
The history of the legal principles of the relation of sacerdotium to imperium--i.e.,
of ecclesiastical to secular authority or of church to state--is a central
factor in European history. (see also Index: Justinian, Code of)
Because of the discontinuity that has developed between church and state in
modern times and the more exclusively spiritual and pastoral function of church
organization, scholars in canon law are searching for a recovery of vital
contact among canon law and theology, biblical exegesis (critical interpretive
principles of the Bible), and church history in their contemporary forms.
Canon-law scholars are also seeking a link with the empirical social sciences (e.g., sociology,
anthropology, and other such disciplines), which is required for insight into
and control of the application of canon law. The study of the history of canon
law calls not only for juridical and historical training but also for insight
into contemporary theological concepts and social relationships. Many sources,
such as the documents of councils and popes, are often uncritical and found only
in badly organized publications, and much of the material exists only in
manuscripts and archives; frequently the legal sources contain dead law (i.e., law
no longer held valid) and say nothing about living law. What does and does not
come under canon law, what is or is not a source of canon law, which law is
universal and which local, and other such questions must be judged differently
for different periods.
The function of canon law in liturgy, preaching, and social activities
involves the development and maintenance of those institutions that are
considered to be most serviceable for the personal life and faith of members of
the church and for their vocation in the world. This function is thus concerned
with a continual adaptation of canon law to the circumstances of the time as
well as to personal needs.
The early church was not organized in any centralized structure. Over a long
period of time, there developed patriarchates (churches believed to have been
founded by Apostles) and bishoprics, the leaders of which--either as monarchical
bishops or as bishops with shared authority (i.e.,
collegiality)--issued decrees and regulatory provisions for the clergy and
laity within their particular jurisdictions. After the emperor Constantine
granted tolerance to Christians within the Roman Empire, bishops from various
sees--especially from the eastern part of the empire--met in councils (e.g., the
ecumenical Council of Nicaea). Though these councils are known primarily for
their consideration of doctrinal conflicts, they also ruled on practical matters
(such as jurisdictional and institutional concerns), which were set down in
canons. In the West, there was less imperial interference, and the bishop of
Rome (the pope) gradually assumed more jurisdictional authority than his
counterpart (the ecumenical patriarch of Constantinople) in the East. Throughout
this period there were often conflicting canons, since there were many
independently developed canonical collections and no centralized attempt to
bring order out of the many collections until the Middle Ages. (see also Index:
episcopacy)
In addition to the New Testament, the writings of the Apostolic Fathers
(second generation of Christian writers) and the pseudo-apostolic writings
(documents attributed to but not written by the Apostles) contain the oldest
descriptions of the customs existing in the East from the 2nd century until the
5th. The sources of all the others are the Doctrina
duodecim Apostolorum (Doctrine of the
Twelve Apostles, 2nd century?), the Didascalia Apostolorum(Teaching of the Apostles, 3rd
century), and the Traditio Apostolica (Apostolic
Tradition), attributed to Hippolytus, written in Rome about AD 220 but far
more widely distributed in the East. From these documents, the Constitutiones
Apostolicae (Apostolic
Constitutions), in which 85 Canones
Apostolicae (Apostolic Canons) were included, were composed
about AD 400.
During the period that followed Constantine's grant of religious toleration,
many synods held in the East legislated, among other things, various
disciplinary rules, or canones.
In addition to and in place of the law of custom, written law entered the
scene. An ecumenical Council of Chalcedon (AD 451) possessed a chronological
collection of the canons of earlier councils. This Syntagma canonum ("Body
of Canons"), or Corpus canonum
orientale ("Eastern Body of Canons"), was subsequently
complemented by the canons attributed to other 4th- and 5th-century councils,
canonical letters of 12 Greek Fathers and of the 3rd-century Latin bishop of
Carthage, Cyprian, and the Constitutiones
Apostolicae. With the exception of the last, the Trullo (supplementary)
Council of Quinisextum, or the fifth and sixth councils (692), accepted this
complex, along with its own canons, as the official legal code of the Eastern
churches. The canons of the second ecumenical Council of Nicaea (787) and of the
two councils (861 and 879-880) under Photius, patriarch of Constantinople, were
added to that.
The systematic collections--and there were many of them--contained either
canons of councils or ecclesiastical laws (nomoi) of the emperors or both
together (nomocanons). The first known Greek collection of canons that is
preserved is the Collectio
50 titulorum ("Collection of 50 Titles"), after the model of the
50 titles of the work known as the Pandecta
("Accepted by All") composed by the patriarch John Scholasticus
about 550. He composed from the Novels (Novellae
constitutiones post Codicem) of Justinian the Collectio
87 capitulorum ("Collection of 87 Chapters"). The Collectio
tripartita ("Tripartite Collection"), from the end of the 6th
century and composed of the entire Justinian ecclesiastical legislation, was the
most widely distributed. The nomocanons were expressions of the fusion of
imperial and church authority. The Nomocanon
50 titulorum ("Canon Law of 50 Titles") from about 580, composed
of the works of John Scholasticus, remained in use until the 12th century. The
edition of the Nomocanon 14 titulorum ("Canon Law of 14
Titles") was completed in 883 and accepted in 920 as law for the entire
Eastern Church.
The science of canon law was pursued together with the study of secular law,
especially in the schools in Constantinople and Beirut. The Scholia
(commentaries) on the Basilicaa compilation of all of imperial law
from the time of Justinian, promulgated by the Byzantine emperor Leo VI (reigned
886-912), influenced the method of commenting on and teaching canon law. The
best-known commentators in the 12th century were Joannes Zonaras and Theodore
Balsamon. Matthew Blastares composed his Syntagma
alphabeticum("Alphabetical Arrangement"), an alphabetic manual of
all imperial and church law, in 1335 from their works.
The churches of Eastern Christianity that separated from the patriarchal see
of Constantinople over a period of several centuries, but primarily during the
5th and 6th centuries, developed bodies of canon law that reflected their
isolated and--after the Arab conquests in the 7th century--secondary social
position. Among these churches are the Syrian Orthodox Patriarchate of Antioch
(in Syria), the Ancient Church of the East (the Assyrians), the Armenian
Apostolic Church, and the Coptic Orthodox Church (in Egypt). Another independent
church is the Ethiopian Orthodox Church.
Though these churches developed an extensive body of canon law throughout
their histories, Western knowledge of their canon law has been very scant. In
the 20th century, however, more than 300 manuscripts dealing with canon law were
found in various isolated monasteries and ecclesiastical libraries of the Middle
East by Arthur V拓bus, an Estonian-American church historian. These manuscripts
cover the period from the 3rd to the 14th century and deal with ecclesiastic
regulations of the Syrian churches. Included among these manuscripts are the
following: "The Canons of the Godly Monastery of St. Mar
Mattai" (630), 26 in number, concerning the jurisdiction of the
metropolitan (an archbishop) over the monastery; "The Canons of the Holy
Qyriaqos, Which the Patriarch Composed and the Synod of the Saints and Bishops
with Him" (794), containing 46 canons dealing with ecclesiastical and moral
discipline and with liturgical, cultic, and monastic matters; and "The
Canons Which Were Composed by the Holy Synod Which Assembled in Bet Mar Sila
[in the region] of Serug, and Which Consecrated Mar Dionysios as
Patriarch of Antioch, the City of God" (896), which originally contained 40
canons, though only 25 remain, dealing with the election and examination of
candidates for the hierarchy and clergy, the conduct of priests, marriage, pagan
influences, and religious and ecclesiastical duties. These canonical collections
come from the West Syrian churches. Other canonical collections of the East
Syrian churches were published in the early part of the 20th century.
From about 300 until about 550, canon law in Western churches had a certain
unity through the acceptance of the Eastern and North African councils and the
binding factor of the papal decretal law (answers of popes to questions of
bishops in matters of discipline), which did not exist in the East. The African
canons, like the Eastern canons at Chalcedon, were read out at the councils of
Carthage and, if confirmed, included in the Acts, which contained the newly
enacted canons. Thus, at the third Council of Carthage (397), the Compendium of
the Council of Hippo (393) was included. The collection of the 17th Council of
Carthage (419) was soon accepted in all of the East and West. In Spain the
canons of Nicaea I (325) and Chalcedon (451) and also African and south Gallican
canons and Roman decretals were taken over, as well as their own canons, but the
later Hispana (Spanish collection) crowded out all earlier collections.
The Council of Elvira (295-314) in Spain was the first that set up a more
complete legislation, followed by Gaul in the first Council of Arles in 314.
Texts from the East, Spain, and Rome, including the Collectio Quesnelliana (an
early 6th-century canonical collection named for its publisher, the 17th-century
Jansenist scholar Pasquier Quesnel), circulated there. Gennadius, a priest from
Marseille, in about 480 wrote the Statuta ecclesiae antiqua ("Ancient
Statutes of the Church"), principally inspired by the Constitutiones
Apostolicae. A tendency toward the unification of canon law revealed itself
most clearly in Italy against the disintegrating situation that existed between
the Eastern and Western churches--i.e., the so-called Acacian Schism
(484-519), occasioned by the patriarch Acacius of Constantinople and the emperor
Zeno's neglect of the legislation of the Council of Chalcedon--and the breakup
of the Western Empire soon after the fall of Rome (476), at the time of the
30-year "Gelasian renaissance," beginning during the reign of Pope
Gelasius I. There also existed in Rome translations of Eastern councils: Vetus
Romana, Versio Hispana ("Ancient Roman, Spanish Version"), Isidoriana,
versio Prisca ("The Isidorian, Priscan Version"), and Itala
("Italian"). By far the most important is that of the Liber
canonum ("Book of Canons") of the 6th-century Roman theologian
Dionysius Exiguus, about 500. The first two versions contain 50 Canones Apostolorum, Greek
canons, and the African canons of the 17th Council of Carthage. Dionysius
Exiguus also composed a Liber
decretorum ("Book of Decretals") from Pope Siricius to Pope
Anastasius II. Together, the books form the Corpus
("Body") or Codex canonum ("Code of Canons").
(see also Index: "Hispana collectio," )
Until the end of the 7th century a greater decentralization and less mutual
contact occurred in the separate German kingdoms. Elements of German law found
their way into Roman canon law. The Collectio
Avellana ("Avellan Collection"), written in Rome about 555, which
was a Western nomocanon; the Collectio
Novariensis ("Novarien Collection"); and the Epitome
Hispanica ("Spanish Abridgment") entered Italy from Spain. In
Africa the first, albeit primitive, systematic collections appeared. These
included the Breviatio canonum ("Abridgment of Canons") of
(Fulgentius) Ferrandus, deacon of the Church of Carthage (c.
546), and the Concordia canonum Cresconii ("Harmony of the
Canons of Cresconius," a 6th- or 7th-century author), a systematic
compilation of the
Dionysiana, subsequently found in different manuscripts in Gaul. There
the collections were local ones: every cathedral and monastery had its own
liber canonum. The church of Arles, the metropolis of southern Gaul, had
the Liber auctoritatum ("Book of Authorities"; i.e.,
legal texts), a nomocanon of its privileges. The first systematic Gallic Collectio
Andegavetis ("Andegavenan Collection"), from the end of the 7th
century, was an attempt to unite the ancient law with the native. (see also Index:
North Africa)
In Spain, after the conversion of King Recared in 587, the church of the
Visigothic kingdom became a well-knit national church with a classical
provincial structure under metropolitan jurisdiction, closely linked to the
crown. The national councils of Toledo preserved the unity of law and respect
for the ancient law. The
Capitula ("Chapters") of Martinus, bishop of Braga (c. 563),
was included completely in the Hispana and was also copied outside Spain.
The Collectio Novariensis was related to the Epitome Hispanica,
the code of the hierarchy that was temporarily halted at the fourth Council of
Toledo (633). The Hispana was recognized by popes Alexander III and
Innocent III as the authentic corpus canonum of the Spanish church.
Shortly before the Hispana,
systematic indices (called tabula) were written and were subsequently
expanded into excerpta ("excerpts") and finally into complete
texts, the
Hispana systematica ("Systematic Spanish [Code]"). After the
10th century, the Hispana was also called the Isidoriana,
attributed to Isidore of Seville, a Spanish encyclopaedist and theologian,
who was the author of the Etymologiae ("Etymologies"), a
universally distributed early medieval book of doctrine.
The most disparate picture is offered by the church in the British Isles. The
church there was concentrated around heavily populated monasteries, and
discipline outside them was maintained by means of a new penitential practice.
In place of ancient canons about public penance, the clergy and monks used libri poenitentiales ("penitential
books"), which contained detailed catalogs of misdeeds with appropriate
penances. They were private writings without official authority and with very
disparate content. From the monasteries founded in Europe by the Irish monk St.
Columban and missionaries of Anglo-Saxon background, the libri
poenitentiales spread throughout the continent, where once again new
versions emerged. The Collectio
Hibernensis ("Hibernian [or Irish] Collection"), of about 700,
used texts from Scripture, mainly from the Old Testament, for the first time in
canonical collections, and texts from the Greek and Latin early Church Fathers
in addition to canons. The Liber ex lege
Moysi ("Book from the Law of Moses"), an Irish work, drew
exclusively from the Pentateuch. (see also Index: Ireland, England)
The reorganization of the Frankish church began with the Carolingian reform
in the middle of the 8th century. The canon law was set down especially in the Capitula("Ecclesiastical
Articles") of the prince, as well as in the Capitularia missionum ("Mission Articles"; i.e.,
instructions given by the prince to the bishops and abbots who visited in
his name). The Capitularia ("Short Articles") of Charlemagne, the founder
of the Holy Roman Empire, and his son, the emperor Louis the Pious, were
collected in 827 by the abbot Ansegisus. Following this model the bishops
composed terse capitula, the oldest known diocesan statutes, for their
clergy. The penance books were condemned and replaced by new ones that were more
closely related to tradition. The reception of the Dionysiana and the Hispana
is of importance for the transmission of the text and for the Carolingian
cultural renaissance. In 774 Charlemagne received from Pope Adrian I a completed
Dionysiana, the Dionysiana-Hadriana,
which was accepted at a national synod in Aachen in 802 but never was
adopted as an official national code. About 800 the Hadriana and the Hispana were developed into a systematic
whole, the Dacheriana
(canonical collection named for its 17th-century publisher, a French
scholar, Jean-Luc d'Achéry)--the principal source of the collections
before 850--which was of influence until the Gregorian reform in the 11th
century. (see also Index: Carolingian dynasty)
After Louis the Pious, the central power among the Franks was increasingly
divided among counts and barons. German law--which linked the right to govern
with land ownership, without distinction between public and private
law--expressed itself in the medieval forms of the system of private churches.
This northern law looked upon dioceses, churches, and monasteries--with their
rights and privileges--as lucrative possessions that deserved to be confiscated,
by fraudulent means if necessary.
Such situations became the occasion in about 850 for the massive
falsifications (i.e.,
forgeries) of the pseudo-Isidorian collections: the Hispana
Augustodunensis ("Spanish Collection of Autun"), the Capitula
Angilramni ("Chapters of Angilramnus," bishop of Metz), the Capitularia
Benedicti Levitae ("Frankish Imperial Laws of Benedict the
Levite," a fictitious name), and the Pseudo-Isidorian
Decretals. The central goal of the anonymous Frankish group of authors of
these collections was to strengthen the position of the bishops and to rectify
the poor condition of ecclesiastical-state affairs. This was accomplished by
means of falsified and forged texts that were attributed to the esteemed
authority of the old law (i.e., the popes) and the Carolingian princes.
They did not have much influence on the real development of canon law, although
later collections drew from them abundantly. Only the Magdeburg Centuriators,
authors of the Centuries,
a 16th-century Lutheran church history, denied the genuineness of all the
decretals of pseudo-Isidore; the lack of authenticity of the other three works
was discovered later.
Several collections appeared before AD 1000. About 882 decretals were
organized in the Collectio
Anselmo dedicata ("Collection Dedicated to Anselm"), a papally
oriented, systematic work from northern Italy. In Germany the Libri
duo de synodalibus causis et disciplinis ecclesiasticis ("Two Books
Concerning Synodical Causes and Church Discipline") of Regino, abbot of Prüm
(906), was a bishops' manual for the judicial interrogation of jurymen during a
visitation; and in France appeared the collection of Abbon, abbot of Fleury (c.
996), which defended the legal position of his monastery against the king
and bishop. Intended as a doctrinal book for the young cleric, the Decree of
Burchard--bishop of Worms from 1000 to 1025--became the canon-law manual in the
cathedral schools and in the curias (administrative bureaucracies) of bishops
and abbots in Germany, France, and Italy. Burchard was a promoter of moderate
imperial reform. He did not reject the system of private churches; he only
rejected the misuses proceeding from it, such as simony (buying or selling
church offices) and the violation of celibacy.
The slogans of the Gregorian reformation, initiated by Pope Gregory VII
(reigned 1073-85), were libertas Ecclesiae ("liberty of the
church") and puritas
Ecclesiae ("purity of the church"). These slogans advocated
freedom from the system of private churches on all levels; freedom from papal
dependence on the Roman nobility and emperor; freedom from dependence of the
village priest on his senior (the beginning of the fight against
investiture); and purity from simony and from the total collapse of celibacy
(which was exhibited in the practice of hereditary parishes and bishoprics).
Fundamental principles of Gregorian canon law included those stipulating that
only canon law that is given or approved by the pope is valid; papal legates
(representatives) stand above the local hierarchies and preside over synods; for
possession of every ecclesiastical office, choice and appointment by church
authorities is demanded, along with the exclusion of lay investiture; every form
of simony makes the appointment invalid; and the faithful must boycott the
services of married priests. New material was sought, especially for the
confirmation of papal primacy, in archives and libraries. The principal new
sources were the Breviarium of Cardinal Atto (c. 1075), the Dictatus
Papae ("Dictates of the Pope") of Gregory VII (c.
1075), the Collectio 74 titulorum, or "Collection of 74
Titles" (1074-76), the collection of Bishop Anselm of Lucca (c. 1083)
and that of Cardinal Deusdedit (c. 1085), and the Liber
de vita Christiana ("Book Concerning the Christian Life") of
Bonizo, bishop of Sutri (c. 1090).
The investiture battle over the conflicting asserted rights of lay or
ecclesiastical officials to invest a church official with the symbols of his
spiritual office ended in France, England, and Germany (Concordat of Worms,
1122) in compromises. Gregorian law, which now seems too strict, had to be
reconciled with the established traditions. Ivo, bishop of Chartres from 1091 to
1116, contributed to the settlement of the investiture problem by his political
activities; his extended correspondence; and his three law collections, Tripartita ("Tripartite
Collection"), Decretum ("Decrees";
i.e., collection of decrees or canons), and Panormia (collections
of "All the Laws"), the last two practically a fusion of Burchard's
Decree with Gregorian law. The famous Prologue, written by Ivo for either the Decretum
or the Panormia, indicated for the first time a method by which the
bishop must handle the conflicting strict and liberal texts, with justitia ("justice")
or misericordia ("mercy"). Bernold of Constance, in his little
tractates, written between 1070 and 1091, listed several criteria for the
reconciliation of conflicting texts, including authenticity of the text;
identity of the author; difference between law, counsel, and dispensation,
between universal and local law, of time and place; and different meanings of a
word. A Liège (Belgium) canon lawyer, Alger, in his Liber de misericordia et justitia, or
"Book Concerning Mercy and Justice" (c. 1105), applied Ivo's criteria to the problem of the effect of
sacraments administered by heretics and persons guilty of simony. The great
medieval theologian Abelard developed the method of reconciling texts that are
for or against a theological position in his Sic
et nonor "Yes and No" (1115-17). The same methods were applied by
the first writers of glosses (commentaries or interpretations) at the law school
in Bologna on the Pandecta of Justinian, which was rediscovered in about
1070.
About 1140 the monk John Gratian completed his Concordia discordantium canonum
("Harmony of Contradictory Laws"), later called the Decretum
Gratiani ("Gratian's Decree"); it became not only the definitive
canonical collection of the entire preceding tradition but also a systematic
application of the scholastic method to all legal material. The Decretum
dealt with the sources of the law, ordinations, elections, simony, law of
procedure, ecclesiastical property, monks, heretics, schismatics, marriage,
penance, and sacraments and sacramentals. Primitive as it was, it provided a
foundation for systematic compilation of the legal material by the canonists and
for the expansion of decretal law. It provided a basis for the education in
canon law that began in the schools of Bologna, Paris, Orléans,
Canterbury, Oxford, Padua, and elsewhere. It was accepted everywhere in the
ecclesiastical administration of justice and government.
From the time that the Gregorian reformation introduced a more centralized
ecclesiastical administration, the number of appeals to Rome and the number of
papal decisions mounted. New papal laws and decisions, called decretals, first
added to Gratian's Decretum,
were soon gathered into separate collections, of which the best known are the Quinque compilationes antiquae ("Five Ancient
Compilations"). The first, the Breviarium
extravagantium ("Compendium of Decretals Circulating Outside"; i.e.,
not yet collected) of Bernard of Pavia, introduced a system inspired by the
codification of Justinian, a division of the material into five books, briefly
summarized in the phrase judex ("judge"),
judicium ("trial"), clerus
("clergy"), connubium ("marriage"),
crimen ("crime"). Each book was subdivided into titles and
these in turn into capitula, or canons. This system was taken over by all subsequent
collections of decretals. These compilations were the foremost source of the Liber
extra ("Book Outside"; i.e.,
of decretals not in Gratian's Decree) or Liber
decretalium Gregorii IX("Book of Decretals of Gregory IX"),
composed by Raymond of Peñafort, a Spanish canonist, and promulgated on
Sept. 5, 1234, as the exclusive codex for all of canon law after Gratian. On
March 3, 1298, Pope Boniface VIII promulgated Liber sextus ("Book
Six"), composed of official collections of Innocent IV, Gregory X, and
Nicholas III, and private collections and decretals of his own, as the exclusive
codex for the canon law since the Liber
extra. The Constitutiones Clementinae ("Constitutions of
Clement") of Pope Clement V, most of which were enacted at the Council of
Vienne (1311-12), were promulgated on Oct. 25, 1317, by Pope John XXII, but they
were not an exclusive collection. The Decretum
Gratiani, the Liber extra, Liber
sextus, and Constitutiones
Clementinae, with the addition of two private collections, the Extravagantes
of John XXII and the Extravagantes
communes ("Decretals Commonly Circulating"), were printed and
published together for the first time in Paris in 1500. This entire collection
soon received the name Corpus Juris
Canonici ("Corpus of Canon Law").
The science of canon law was developed by the writers of glosses, the
commentators on the Decree of Gratian (decretists), and the commentators on the
collections of decretals (decretalists). Their glosses were based on the system
used by Gratian: next to the texts of canons parallel texts were noted, then
conflicting ones, followed by a solutio ("solution"), again
with text references. In connection with this the glosses of other canonists
were also introduced. In this way the apparatus glossarum, continuous
commentaries on the entire book, arose. The glossa ordinaria ("ordinary
explanation") on the different parts of the Corpus Juris Canonici was
the apparatus that was used universally in the schools. After the classical
period of the glossators (12th-14th century), terminated by the work of a lay
Italian canonist, John Andreae (c.
1348), followed that of the post-glossators. In the absence of new
legislation in the time of the Babylonian Captivity (1309-77), when the papacy
was situated at Avignon, Fr., and the Great Schism (1378-1417), when there were
at least two popes reigning simultaneously, the commentaries on decretals
continued, but with a larger production of special tracts; e.g.,
regarding the laws of benefices and marriage and of consilia
(advice about concrete legal questions). (see also Index: legal
glossator)
Toward the end of the Middle Ages decretal law ceased to govern. Medieval
Christian society became politically and ecclesiastically divided, according to
the principle of cujus regio, ejus religio (Latin: "whose region,
his religion"; i.e.,
the religion of the prince is the religion of the land). In Protestant areas
the former Roman Catholic church buildings and benefices were taken over by
other churches; and even in the lands that remained Catholic the churches found
themselves in an isolated position as secularization forced the churches to
reorganize. With the end of feudalism, canon law dealing with benefices,
chapters, and monasteries, which were closely bound to the feudal structure,
changed. The territorial, material, and economic character of canon law and the
decentralization allied with it disappeared. The decision of the reform councils
from Pisa (1409) until the fifth Lateran Council (1512-17) affected, in
particular, benefices, papal reservations, taxes, and other such ecclesiastical
matters. In the same period various concordats (agreements) permitted the
princes to intervene in the issue of ecclesiastical benefices and property.
Canon law took on a more defensive character, with prohibitions regarding books,
mixed marriages, participation of Roman Catholics in Protestant worship and vice
versa, education of the clergy in seminaries, and other such areas of concern.
At the Roman Catholic reform Council of Trent (1545-63) a new foundation for
the further development of canon law was expressed in the Capita de reformatione ("Articles
Concerning Reform"), which were discussed and accepted in 10 of the 25
sessions. Papal primacy was not only dogmatically affirmed against conciliarism
(the view that councils are more authoritative than the pope) but was also
juridically strengthened in the conduct and implementation of the council. The
central position of the bishops was recovered, over against the decentralization
that had been brought about by the privileges and exemptions of chapters,
monasteries, fraternities, and other corporate bodies that sprang from Germanic
law, as well as caused by the rights granted to patrons. In practically all
matters of reform the bishops received authority ad
instar legati S. Sedis ("like delegates of the Holy See"). Strict
demands were made for admission to ordination and offices; measures were taken
against luxurious living, nepotism, and the neglect of the residence obligation;
training of the clergy in seminaries was prescribed; prescriptions were given
about pastoral care, schools for the young, diocesan and provincial synods,
confession, and marriage; the right to benefices was purified of misuse; and the
formalistic law of procedure was simplified.
The council gave the duty of execution of the reform to the pope. On Jan. 26,
1564, Pius IV confirmed the decisions, reserved to himself their interpretation
and execution, and on Aug. 2, 1564, established the Congregation of the Council
for that purpose. The congregations of cardinals, which proceeded from the
former permanent commissions of the consistorium (the assembly of the
pope with the College of Cardinals), were organized by Pope Sixtus V in 1587.
Since then the administrative apparatus of the Curia has consisted of
congregations of cardinals together with courts and offices. This apparatus made
it possible for the Latin Church to acquire a uniform canon law system that was
developed in detail. (see also Index: Roman Curia)
Expansion of the church brought with it expansion of the ordinary
hierarchical episcopal structure. This was true also for the new colonies under
the right of patronage of the Spanish and Portuguese kings. In the other mission
areas and in the areas taken over by the Protestants, where the realization of
the episcopal structure and the decretal law adopted by Trent was not possible,
the organization of mission activity was taken from missionaries and religious
orders and given to the Holy See. The Sacred Congregation for Propagation of the
Faith (the Propaganda) was established for this purpose in 1622. Missionaries
received their mandate from Rome; the administration was given over to apostolic
vicars (bishops of territories having no ordinary hierarchy) and prefects
(having episcopal powers, but not necessarily bishops) who were directly
dependent on the Propaganda, from which they received precisely described
faculties. A new, uniform mission law was created, without noteworthy native
influence; this sometimes led to conflict, such as the Chinese rites controversy
in the 17th and 18th centuries over the compatibility of rites honouring
Confucius and ancestors with Christian rites.
The first Vatican Council (1869-70) strengthened the central position of the
papacy in the constitutional law of the church by means of its dogmatic
definition of papal primacy. Disciplinary canons were not enacted at the
council; but the desire expressed by many bishops that canon law be codified did
have influence on the emergence and content of the code of canon law.
Since the closing off of the Corpus Juris
Canonici there had been no official or noteworthy private collection of the
canon law, except for the constitutions of Pope Benedict XIV (reigned 1740-58).
The material was spread out in the collections of the Corpus
Juris Canonici and in the generally very incomplete private publications of
the acta of popes, of general and local councils, and the various Roman
congregations and legal organs, which made canon law into something unmanageable
and uncertain. The need for codification was recognized even more because of the
fact that since the end of the 18th century, secular law had undergone a period
of great codification. Several private attempts to do this had met with little
success.
On March 19, 1904, Pius X announced his intention to complete the
codification, and he named a commission of 16 cardinals, with himself as
chairman. Bishops and university faculties were asked to cooperate. The schemata
of the five books that were prepared in Rome--universal norms, personal law, law
of things, penal law, and procedural law--were proposed in the years 1912-14 to
all those who would ordinarily be summoned to an ecumenical council, and with
their observations were then reworked in the cardinals' commission. The entire
undertaking and all the drafts were under the papal seal of secrecy and were not
published. Meanwhile, Pius X introduced various reforms that were to a great
degree the results of the commission's work. In July 1916 the preparations for
the Codex
Juris Canonici ("Code of Canon Law") were completed. The code was
promulgated on Pentecost Sunday, May 27, 1917, and became effective on Pentecost
Sunday, May 19, 1918.
In contrast to all earlier official collections this code was a complete and
exclusive codification of all universal church law then binding in the Latin
Church. Out of fear of political difficulties, a systematic handling of public
church law, especially what concerned the relations between church and state,
was omitted. Its main purpose was to offer a codification of the law, and only
incidentally adaptation, and so it introduced relatively little that was new
legislation. The 2,414 canons were divided into five books that no longer
followed the system of the collections of decretals but did follow that of the
Perugian canonist Paul Lancelotti's Institutiones
juris canonici (1563; "Institutions of Canon Law"), which in turn
went back to the division of the 2nd-century Roman lawyer Gaius' Institutiones--one
section on persons, two sections on things, and one section on actions--and was
based on the fundamental idea of Roman law; i.e.,
subjective right. In some editions the sources that were used by the editors
were indicated at the individual canons. With the publication of the codex these
sources belonged to the history of the law. Older general and particular law, in
conflict with the codex, was given up and, insofar as it was not in conflict
with it, served only as a means for interpreting the code. The old law of custom
in conflict with the code and expressly reprobated by it was rendered null; when
not reprobated and 100 years old or immemorial it could be allowed by ordinaries
for pressing reasons. Acquired rights and concordats in force remained in force.
With this change, an independent science of the history of canon law became
necessary, in addition to the dogmatic canonical science of canon law on the
basis of the code.
In order to ensure the unity of the codification and the law, a commission of
cardinals was established on Sept. 15, 1917, for the authentic interpretation of
the new code. At the same time it was decided that the cardinals' congregations
should no longer make new general decrees but only instructions for the carrying
out of the prescriptions of the code. Should a general decree appear necessary,
it was determined, the commission would formulate new canons and insert them
into the code. Neither of these decisions was carried out. Only two canons were
altered and congregations promulgated numerous general decrees. New papal
legislation complemented and altered the law of the code.
Catholic Eastern churches (churches in union with the Roman Catholic Church)
retain their own traditions in liturgy and church order, insofar as these are
not considered to be in conflict with the norms taken by Rome to be divine law.
In 1929 Pius XI set up a commission of cardinals for the codification of canon
law valid for all Uniate churches in the East. In the following year a
commission was established for the preparation of the codification and one for
the collection of the sources of Eastern law, in which experts of all rites were
involved. These collections were published in three series, begun respectively
in 1930, 1935, and 1942.
In 1935 the preparatory commission became the Pontifical Commission for the
Redaction of the Codex Juris Canonici
Orientalis ("Code of Oriental Canon Law"). The cooperation of all
Eastern ordinaries (bishops, patriarchs, and others having jurisdictions) was
requested, and the drafts of the various documents were sent to them. Thereafter
four parts were published: in 1949, on marriage law; in 1952, on the law for
monks and other religious, on ecclesiastical properties, and a title De Verborum Significatione ("Concerning
the Meaning of Words"), a series of definitions of legal terms used in the
canons; and in 1957, on constitutional law, especially of the clergy. The still
incomplete codification followed the Latin code with the assimilation of the
authentic interpretation and with textual corrections, and also with the
insertion of the general law proper to the Eastern churches, including the
Orthodox churches, regarding the patriarchs and their synods, marriage law, the
law of religious, and other matters. The promulgation was made
only in Latin in the Acta Apostolicae
Sedis, the official organ of the Holy See. The Catholic Eastern churches
came under the Congregation for the Eastern Churches that was established on
Jan. 6, 1862, by Pius IX as part of the Propaganda
Fide, and was made independent by Benedict XV on May 1, 1917, and expanded
considerably by Pius XI on March 25, 1938. Roman legislation as well as the
jurisdiction of a congregation of the Roman Curia was criticized as being
incompatible with the traditional autonomy of the Eastern churches in
legislation and administration.
Fundamental to the development of canon law in the Roman Catholic Church is
the second Vatican Council's (Oct. 11, 1962-Dec. 8, 1965) vision of the church
as the people of God. In this connection the former concept of the church as societas
perfecta (the "perfect society"), founded by Christ through the
mission of the Apostles and their successors, to which one belongs through
subjection to the hierarchy, is replaced by a vision of the church as a
community in which all possess the sacramental mission to live and proclaim the
Gospel, and all have a function in the service of the whole. The legislative and
administrative functions remain related to the hierarchy, but this is much more
expressly seen as a service for the religious life of the community. The idea of
collegiality, resting on the recognition of the vocation received by each one
from the Lord, works itself out in the relationship existing among the bishops
and with the pope, of the bishops with the clergy, and of the clergy with the
laity. Related to this is a tendency to co-responsibility and the
democratization of the church structure and also an autonomy for the laity to
exercise individually and collectively the Christian mission proper to them;
namely, to bring the spirit of Christ into the secular life of mankind. The
right of clergy and laity to a share in the leadership of bishops and pope is
recognized. The vision of the people of God as sacramentum
mundi, a sign of redemption for all mankind, gave a new insight into the
relationships with the Protestant churches, the other world religions, and the
nonreligious atheistic and humanistic movements. In this view, freedom of
religion and philosophy became the most fundamental right of humanity.
From a schematically chronological survey of the principal conciliar and
post-conciliar legislation a new era apparently began for canon law. In 1960,
the Secretariat for Promoting Christian Unity was established. Three years later
various faculties, previously reserved to Rome, were given to the bishops; and
in 1964, actions were undertaken for the reorganization of the papal commission
for communications media, establishment of the Secretariat for Non-Christians,
and lifting of the prohibition against cremation. Other legislative changes
indicating a new era included several regulations that could not have been
proposed with any possibility of their being accepted prior to Vatican II. In
1965, for example, preeminence in the College of Cardinals was given to Eastern
patriarchs, after deacon and subdeacon and after the cardinals of the dioceses
of the province of Rome; in the same year the Secretariat for Non-Believers was
established and the Holy Office (formerly the Inquisition) became the
Congregation for the Doctrine of the Faith, with emphasis on the positive
fostering of theological research. In 1966, greatly reduced prescriptions for
fasting and abstinence were adopted, the Index of prohibited books became a
moral guide instead of obligatory law, and in implementation of the conciliar
degree on the episcopal office, the principle according to which ordinaries (e.g.,
bishops) dispense from universal laws only when this is allowed by law or
special faculties was replaced by the principle that ordinaries can always
dispense unless it is explicitly reserved to Rome--and such reserved
dispensations in question are indicated.
In addition to these changes, further canonical regulations were accepted.
New regulations for mixed marriages were adopted in 1966. Norms were established
for the implementation of the conciliar decrees on the office of bishops and
priests; missionary activity; personal and material aid to needy churches;
introduction of priests' councils and pastoral councils of priests, religious (i.e.,
monks and nuns), and laity as advisory groups for bishops; international
episcopal conferences and their mutual relationships; and other concerns. From
1967 to 1970 more changes were made in canonical regulations--e.g.,
in 1967, total revision of the norms for indulgences, establishment in the
Roman Curia of the council of laymen and the study commission Justitia et Pax
("Justice and Peace"), new dispensation rights for Eastern bishops,
directory for ecumenical cooperation with Christian churches, regulation of the
office of the diaconate to include married men, and reorganization of the Roman
Curia; in 1970, a mandate to the secretary of state to discuss with the world
episcopacy the question of celibacy and ordination of married men in areas that
need priests.
Characteristics of the new regulations included a searching for structures to
allow all members of the church to have a voice in ecclesiastical decision
making and decentralization and autonomy of local churches. Regulations from
Rome were kept to the general, with ample room for local adaptation. In
addition, new regulations were to be enacted only after extensive and open
inquiry and test by experience, with possibilities for experimentation. In place
of regulations of religious behaviour, canon law was becoming an ordering of the
cooperation of all members of the Roman Catholic Church for the realization of
its mission in the world.
On Jan. 25, 1959, John XXIII announced the revision of the church's code. On
March 28, 1963, he set up a commission of cardinals for that purpose. On April
17, 1964, Paul VI named the first consultants. No publicity was given to the
commission's work, but the first episcopal synod (Sept. 30-Oct. 4, 1967) gave
its approval to a document in which several principles for the revision were
indicated (Principia
quae codicis juris canonici recognitionem dirigant, or "Principles
Which Guide the Recognition of the Code of Canon Law"): the juridical
character of the code ought to be preserved and not, as some wished, be limited
to a rule for faith and morals; canon law for the area of each one's personal
conscience should be maintained, but conflicts between law for conscience and
public law ought to be avoided, especially in marriage and penal law; as a means
to stimulate pastoral work it was recommended that the laws be expressed in a
spirit of love, fairness, and humanity; no binding prescriptions were to be
given where admonition and counsel suffice; pastoral workers were to be given
more discretionary powers, and greater freedom was to be given to bishops,
especially in mission areas; laws were to be such that ample possibility is
given for local adaptation, carrying through the principle of subsidiarity (i.e., that
nothing should be committed to higher organs that can be accomplished by
individuals or lesser or subordinate bodies), however, with care to retain the
unity of law and jurisdiction; regulation of administrative jurisdiction and in
principle public jurisdiction; distinction of legislative, administrative, and
judicial functions; limitation of punishments, in particular limitation of
punishments incurred automatically upon commission of the offense to very few
and very serious crimes. On May 28, 1968, the commission approved a preliminary
division of the new codex. ( P.Hu./Ed.)
As the drafts of the various parts of the new code became available, a vast
process of consultation was initiated. The departments of the Roman Curia, the
local bishops and their regional conferences, the heads of religious institutes,
and university faculties of canon law were invited to evaluate the schemata and
offer suggestions for their improvement. This lengthy procedure was completed in
1982.
The second Codex
Juris Canonici in history for the Catholics of the Latin rite was
promulgated by Pope John Paul II on Jan. 25, 1983, and entered into effect on
Nov. 27, 1983. It contains 1,752 canons divided among seven books. The books
are: (1) "General Norms," concerning the operating principles of canon
law, definitions of juridical persons, and ecclesiastical offices; (2) "The
People of God," describing the rights and duties of the faithful in general
and of clerics and lay persons in particular, as well as the organizational
structures of the church, papacy, episcopal college, Roman Curia, particular
churches, and institutes of consecrated life; (3) "The Teaching Office of
the Church," concerning catechetical and missionary activities, schools,
and media of communication; (4) "The Sanctifying Office of the
Church," describing sacraments and worship in all its forms; (5) "The
Temporal Goods of the Church," defining ownership and administration of
property, contracts, and charitable foundations; (6) "Sanctions in the
Church," describing various crimes, delicts, and penalties; and (7)
"Procedures," outlining the administration of justice by
ecclesiastical courts, various quasi-judicial actions, and remedies.
The declared intention of the drafters of the new code was to give practical
effect to the theological insights of the second Vatican Council. The emphasis
in the new law is on the universal people of God, and the governing power of the
hierarchy is presented as a call to serve. The fundamental rights of the
faithful are clearly asserted, and their active participation in the life of the
church is encouraged. An effort was made toward decentralization, with local
bishops enjoying more autonomy. Despite criticism from some scholars and clerics
that the new code remains conservative on certain issues, it is recognized that
the body of the law is permeated by an ecumenical spirit and displays a respect
for the freedom of conscience and religious conviction of every human being.
With the new code the hermeneutics of canon law have changed significantly.
Apart from the strictly legal transactions, creating enforceable rights and
duties (as in matters of property), the application of the laws must be guided
and moderated according to pastoral needs.
A process similar to that used for the preparation of the new code for the
Latin church was in progress during the 1980s for all the Eastern Catholic
churches. The first draft of the new, unified code of laws was completed in
1986. It consists of 1,561 canons, organized into 30 titles. The institutions
and structures of the Uniate churches are supported; the right to worship
according to their own liturgical traditions is confirmed. The dignity and power
of the patriarchs and of the major archbishops are recognized; the importance of
synodal government at different levels is affirmed. Overall, the major themes
found in this draft are the same as the ones in the Latin code (although
arranged in a different order); in matters of common interest many canons are
taken word-by-word from the Latin code. The process of consultation over this
schema, once completed, is likely to bring about many changes in the proposed
canons. The task of codifying in a single volume the laws of so many
churches--having different historical memories, rooted in various cultures, and
without a common language--is a daunting one, even if they all profess the same
faith and are in communion with Rome. (L.M.Ö.)
The Anglican Communion embraces the Church of England and its affiliated
churches. Since the submission of the clergy demanded by King Henry VIII and the
Act of Supremacy in 1534, in which the Parliament recognized him as supreme head
of the Church of England and which was renewed by Queen Elizabeth I, the law of
the English Church rests on the supremacy of the prince or of the Parliament. It
is theoretically accepted that, outside the law determined by the English synods
in the ancient independent national churches, only the principles of the jus
ecclesiasticum commune ("common ecclesiastical law") are binding,
but other norms, promulgated by popes and councils, are accepted only to the
extent that they were accepted by English ecclesiastical or secular courts. For
practical purposes the development of church law in the English Church is held
by some canonists (usually Roman Catholic) to be not canon law but the
ecclesiastical law of the state. The hierarchy has the power to ordain by virtue
of the apostolic succession, which was preserved--according to the Anglican
view--by the consecration of Matthew Parker as archbishop of Canterbury (1559),
but it does not possess legislative authority. The ecclesiastical provinces are
administered by convocations of Canterbury and York, consisting of an upper
house of bishops and a lower house of clergy. In 1919 a Church Assembly was
established by the Enabling Act; the assembly consists of three houses (of
bishops, members of the convocations, and laity) with the authority to make
proposals relating to any matter concerning the Church of England--with the
exception of dogmas of faith--and to present these proposals to the
ecclesiastical committee of Parliament. If the committee agrees on a positive
report, then the Parliament can approve or reject the proposal but not amend it;
if both houses of Parliament accept it, then it acquires the force of law by
royal approval. Lambeth Conferences, which have been held approximately every 10
years since 1867 at the London palace of the archbishop of Canterbury and which
involve all Anglican bishops from throughout the world, do not have legislative
authority.
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