§ 151. B) Church Penalties

As soon as an independent legislative power exists in the church, whose task is to safeguard the legal relations of the church, then necessarily, in connection with this, there must also exist in it a power to punish every act that offends against those relations and hinders the attainment of the church’s own task in the world. The one cannot be conceived without the other, for a law without external sanction is nothing but an empty word; and whoever is a member of the church is unconditionally bound to obey her laws—if he does not submit of his own free will, he must be compelled to it, if he wishes to remain a member of the church.[1] The power of the church to punish those who resist and oppose her laws rests on divine right, exactly as does the power of judgment. From that same passage of holy scripture which we mentioned regarding the church’s court derives also the church’s power to punish transgressors of her laws; and that same passage also tells us in what the essence of church penalties consists.[2]

The Founder of the church, having mentioned the means that should be used so that a transgressor of the law may be reformed, added that in the case of his persistence he should be deprived of communion with the church, excluded from the church, and regarded as a stranger to the church. In deprivation of communion with the church (ἀκοινωνησία, excommunicatio) consists, then, the last and, accordingly, the greatest penalty that the church court can impose on those who offend against her laws. Under the name of communion (κοινωνία, communio) are understood all those rights which a man receives on entering the church, and in particular the right to make use of the church’s saving means of grace, of which the summit is the Holy Eucharist. These rights belong to every member of the church, without distinction of the position he occupies in the church, as soon as he carries out all the precepts of church law; and the communion, which contains within itself all these rights, is called the general communion, the communion of the laity (κοινωνία τῶν λαϊκῶν, communio laica). But in the church there exist, besides the laity, clergy as well, through whom the gifts of grace are conveyed, and who, in keeping with their exalted office and their privileged position in the church, enjoy, alongside the rights of all the other members of the church, certain rights of their own besides. The sum of these rights, which belong to those clergy, is called the communion of clergy (κοινωνία ἐκκλησιαστική, communio clericalis).[3] In both the one communion and the other there are various degrees of these rights: some of them are principal, others subordinate. In connection with this, upon violation of an established law, the offender is deprived, in a set order, of the rights that belong to him, and the greater the violation of the law, the more rights are lost, and the greater the church penalty to which the offender is subjected, and vice versa. And since the essence of every church penalty, whether it concerns a lay believer or a clergyman, consists in deprivation of communion, so the degree of the penalty will depend on the greater or lesser deprivation of that communion which someone has incurred.

One must, moreover, take into account here the subject of the offence; and if that subject is among those who are in the communion of the laity, the penalties are of one kind, but if he is among those who belong to the communion of clergy, the penalties are again of another kind. This follows from the position that laity and clergy respectively occupy in the church. The greatest church penalty to which a clergyman may be subjected is deprivation of clerical rank, and the greatest penalty for a layman is exclusion from the church. To this latter a clergyman as such cannot be subjected, but he can become subject to it only when, having passed through deposition, he has entered the ranks of the laity, and there commits some offence that carries with it that greatest penalty; whereas for that same offence he, as a clergyman, would be punished with deprivation of rank, that is, with the greatest clerical penalty. The reason for this is expressed in the 25th Apostolic canon, where the passage from holy scripture is cited: “do not punish twice for one and the same thing”; and Basil the Great explains this in his 3rd canon, saying of a deacon who transgresses the law that he must be deprived of rank, “but once he has been cast down to the place of the laity, let him not also be deprived of communion (τῆς κοινωνίας οὐκ εἰρχθήσεται), for there is an old canon that those who are cast down from their [hierarchical] rank are to be subjected to only one kind of penalty, in which the ancients, as I judge, followed that law: do not punish twice for one and the same thing—and for another reason besides, namely, that those who are cast down from the place of the faithful may afterward be received again into the place from which they fell, whereas a deacon is subjected once and for all to the penalty of lasting deposition, so that the fathers confined themselves to that one penalty, since the diaconate can never again be restored to him. And this follows from the established order (ταῦτα μὲν οὖν τὰ ἐκ τῶν τόπων).”

Punishment (τιμωρία) has, in church law, its own particular significance, conditioned by the task of the church itself (§ 1). The chief and first aim of every church penalty consists in this: to guide back onto the good path those members of the church who happen to stray from the right way. When the church employs coercive force against some member of hers who has violated a church law, by this she wishes to persuade that same member to reform, so that he may again gain the lost good, which he can find only in communion with the church, and only in the last resort does she deprive him entirely of that communion. The means that the church employs for this purpose may be more or less severe, in proportion to the good and the standing of the whole church at stake. As in every society, so also in the church, the offences of individual members, if they were not punished and the force of the law were not maintained by authority, could easily lead other members of the church astray as well, so that evil would spread widely. At the same time good order in the church could be disturbed, and the very life of the church itself could be endangered, were she not to have the right to exclude bad members from her communion and thereby preserve the good and obedient members from contagion. Many prescriptions of church legislation show us that the church was deeply penetrated by this thought, and that, just as much as she took care to offer offenders the means to reform, she also looked to forestall by these same means any further possible offences, and to preserve the good of the whole church. Likewise the prescriptions of church legislation tell us that, in imposing penalties for various offences, the standing of the church must be kept vividly before one’s eyes. Just as in the first centuries of the church, so too today, unbelievers will respect the church if they see that her members are distinguished by moral life and exemplary conduct, and conversely, the respect of the church on the part of unbelievers will begin to vanish the moment they see that morality is disappearing among the members of the church and that vice reigns in her place instead; and to this a wide path would be opened, were the church not to act with all strictness against those who transgress her laws, were she to tolerate transgressors in her communion. And for the sake of the church’s standing, the church authority must employ coercive means against everyone who by his conduct may lower that standing of hers, and thereby give unbelievers occasion not to respect her. Basil the Great, recommending in his 6th canon the greatest strictness with clergy who fall into fornication, adds “that this too will be useful for the strengthening of the church, and will give no occasion to heretics against us, as though by indulgence in sin we were drawing someone to ourselves.”

From the distinction just given, which the canons make between the subjects of offences, and the various means that they prescribe to be employed against transgressors of the law, one can already see the general difference in the aim that the church keeps in view in imposing penalties on her various members when they transgress her laws. The offences of the laity are, for the church, a matter in which she exercises her ministry of conversion. She strives, in regard to offending laypeople, only to turn them back to the right path and to reform them, so that they may become obedient sons of the church, and accordingly the penalties she imposes on them are not, in the strict sense, penalties, but penances (ἐπιτιμίαι, poenitentiae), until they are wholly converted; and she will receive back into her communion even such offending laypeople as have fallen under the greatest degree of penalty, anathema, provided only that they sincerely repent and complete the prescribed penance. But the church regards the offences of clergy quite differently. She subjects clergy to penalties in the strict sense, as soon as they offend against an established law, and to penalties the more severe the graver the offence; and if her penalties do not help, she deprives them of the office entrusted to them and of clerical rank, and hands them over to the secular authority, to be judged by it like any other transgressor of the law. The offences of the former, which are simply called sins (ἁμαρτίαι), fall under the internal court of the church, at confession (forum internum); the offences of the latter, as true offences (ἐγκλήματα), fall under the external, formal court of the church (forum externum).