§ 143. General Survey

In law, whether in the objective or in the subjective sense, is contained the notion of its inviolability, and from this there directly arises the need to preserve that inviolability and to secure, by lawful means, the free and full exercise of the right. What may be violated is either private or public right. In the first case, the violation touches some individual person in the exercise of what rightfully belongs to him; in the second, it touches only the right in its objective sense. In a violation of private right, the person concerned does not oppose the right as an objective norm, but only fails to recognize that a particular person may exercise it, and he submits to the force of the objective right while opposing only that person; accordingly, a violation of private right can be regarded only as a relative violation. In a violation of public right, the person concerned has offended against the public legal order and has touched the very substance of the right itself; such a violation is therefore regarded as an offence, and consequently as punishable. To preserve a right from every violation constitutes one of the essential conditions of the very existence of that right, without which, in the strict sense, no right can even be conceived. Such an essential condition of the right itself—namely, its preservation from violation—cannot be left to the personal discretion of individual persons without precisely prescribed legal rules, for then the very existence of the right would be exposed to chance. For this reason, and since the violation of a right is, by its very appearance, contemporary with the origin of the right itself, the idea also arose, at the establishment of a right, of the need for judicial aid against every violation of the right, and it was required of the court that it restore the disturbed order to the state in which it had been before the violation of the right. It is therefore the task of the judiciary to preserve the right inviolate and to guarantee to everyone its free exercise.[1]

From the independent position of the Church herself, as a social organism (§. 2), there also arises the Church’s power to exercise, on the basis of her own particular laws, her own judgment concerning every violation of her right, and to employ all coercive means at her disposal, by her very nature, against those members of the Church who violate the order established within her and place obstacles in the way of her free striving toward the fulfilment of her task (§. 1). The foundation of church judicature was laid by the Founder of the Church Himself, when He said to His disciples: ‘If thy brother trespass against thee, go and tell him his fault between thee and him alone; if he shall hear thee, thou hast gained thy brother; but if he will not hear thee, take with thee one or two more, that every word may be established by the mouth of two or three witnesses; and if he shall neglect to hear them, tell it unto the church; but if he neglect to hear the church also, let him be unto thee as a heathen man and a publican.’[2] From that word ‘trespass’ one must not understand that this speaks here of the judgment of conscience and of the inward sins of a man in thought, which constitute the province of the confessor at confession; rather, what is spoken of here are the outward, social relations within the domain of the Church, among the members of the Church, and it is ordained what means must first be employed when some dispute arises between two of them—namely, that witnesses must be called for this purpose, so that the dispute be settled by agreement, and if that does not succeed, that the matter be handed over to the public court of the Church, which court, if the person concerned does not submit, shall punish him with the established penalties. Church judicature for disputes that arise among members of the Church in matters of outward church relations is therefore not something which the Church exercises on the basis of some delegation received from the state or another similar source, but is entirely independent and self-existent, and the Church exercises it by that authority which she received directly from her Founder. On the basis, therefore, of divine right, there exists in the Church her own particular judicature, and from that right the canonical doctrine of church judicature developed; and church legislation prescribed, in the course of time, the corresponding particulars which it found necessary to prescribe for the proper exercise of that same judicature. And in disputed matters concerning civil relations among members of the Church, the church court likewise adjudicated; but in doing so that court did not act by any independent jurisdiction of the Church in civil affairs, for by her very nature the Church cannot possess such jurisdiction; rather, this was, and can be, either when the state authority hands it over to the Church, or else when the faithful, in their disputes of a civil nature, themselves have recourse to the mediating court (arbitration) of the Church and voluntarily submit to the decision of that court.

The right to exercise judicature in the Church belongs to the bishops. In giving His apostles the power to judge ‘the brethren,’ the Founder of the Church thereby showed that the power of judging must belong in the Church to those persons who are the successors of the apostles, that is, the bishops. For this reason the canons speak only of bishops as judges in every disputed matter among the members of the Church;[3] and the canons acknowledge this power to them so fully and exclusively that they threaten with severe penalties anyone who, bypassing the bishop, has recourse to another court,[4] and they declare illegal and void every court which, independently of the bishop, is constituted by priests or others in the Church.[5] If the canons forbid priests to constitute a court by themselves, without the bishop, they forbid this all the more to persons who do not belong to the Orthodox Church, who have broken unity with her.[6] In the earlier times of the Church, and to some extent even today, we find that within defined limits certain sacred persons without episcopal rank also exercised church judicature; but this occurs only by the express authorization of the bishop, and the judgment of such persons is not independent, nor are the decisions of such a court binding of themselves, but they depend, as canonically they must depend, upon the corresponding episcopal confirmation, and only then can they have binding force.

Everything that concerns the life of the Church, both as regards the clergy and as regards the faithful people, is subject to church judicature. In accordance with the independence of the Church’s legislative power, the Church has the right to pronounce her judgment in all matters to which that legislative power extends, and consequently to judge everyone who offends against her laws. The church clergy are subject, by their very position, to the judgment of the Church; but the faithful laity are likewise subject to her judgment in spiritual matters, for, as members of the Church who are such by their own free will, if they wish to enjoy the benefits which the Church gives them, they have the moral duty to obey her laws and to answer before her court for every breach of those laws. Everything that concerns the faith and the moral life of all the members of the Church is subject to the Church’s oversight. Accordingly, her judgment likewise extends both to offences concerning the faith and the religious life within the Church, and to the affairs of every member of the Church in matters of moral life, whether those affairs are of a personal nature or arise from mutual relations among the members of the Church.