§ 158. The Subject of Church Ownership

From what has now been said, it is clear to whom the right over church property belongs, and therefore who is the owner of that property, so that it might even seem superfluous to speak of this question separately. But since in more recent times an indeterminacy on this point has come to the fore among Western canonists, and several distinct theories have in the main arisen on the question of who is the subject of church ownership, it is necessary to state how Orthodox church law teaches on this matter. According to some of these Western canonists, the ownership of church property belongs to the respective church congregations;[1] according to others, to the state;[2] and according to a third group, to the universal Church.[3]

According to the canon law of the Orthodox Church, a church congregation cannot be the owner of church property, for in that case the Church would have to be denied every juridical personality, and there would be no well-founded reason why the political municipality should not then likewise be recognized as such an owner.[4] A church congregation may have a share in the administration of church property, but this does not yet give it the right of ownership, for in that case every guardian too could be regarded as the owner of the property of those entrusted to his guardianship; nor does the fact that the members of a church congregation contribute to the church give that congregation the right of ownership of church property, for the moment these members contribute something to the church, they no longer have the right to dispose of these contributions themselves, but only ever with the approval of the church authority, which holds the supreme oversight over the ownership of each individual local church.

Equally without any foundation is that teaching according to which the ownership of church property belongs to the state authority. This is contrary to the express prescriptions of canon law, and is likewise contrary to the legal ordinances of the Christian emperors, who always distinguished church property from state property, and granted to the Church, with regard to her property, such privileges as distinguished it in every respect from state property. The assertion of state ownership over church property must inevitably lead either to caesaropapism or to socialism. The state authority has certain lawful rights of its own with regard to church property, but from all these rights there does not yet arise any ownership of the state over church property, just as the state possesses no such ownership over private property.

By naming the universal Church as the owner of church property, nothing is thereby said about the legal basis of the ownership itself. In justification of this theory, the stationes fisci of Roman law are adduced, which were autonomous within their own sphere, while all of them together were merely members of one general state treasury; and accordingly individual churches too, down to their smallest divisions (parishes), may have this same autonomous administration of the property attached to them, though that property, again, is nothing other than a portion of one general property of the universal Church. This comparison cannot stand in itself, for it is artificial; but even apart from that, it remains unclear who, in this scheme, represents that property, and how the very concept of the ownership of the universal Church is to be expressed. If the right of ownership of the universal Church derives from the concept of the Church herself, as this theory would have it, it is then inconceivable why the sources of church law nowhere make any mention of this; on the contrary, they always speak of the property of individual churches, and always draw a distinction between what is the possession of one church or church institution and what is the possession of another, nor is it anywhere prescribed that the surplus of one should cover the deficiency of another, as would logically have to follow if the universal Church were recognized as the sole owner of church property.

All these various theories about the subject of church ownership were called forth among Western canonists by the circumstances in which the Church in the West found herself, and by the relation in which she stood, at various times, toward one state or another. Orthodox church law stands, on this question, upon what the sources of church law from the era of the undivided Church declare. In these sources every individual local church is named and recognized as the subject of that portion of the general church property which belongs to it and which it received by gift, inheritance, bequest, or some similar means. This local church possesses all those rights that every other lawful owner enjoys, and she herself, on her own account and before third parties, represents an independent juridical person.[5] This canonical teaching of the Church on the independent ownership of each individual local church over her own property was so firmly rooted in church practice that bishops were strictly forbidden to apply the property of one church to another, even where both churches were subordinate to one and the same bishop and were therefore parts of one and the same eparchy.[6] Alongside the local churches, the canonical sources recognize as subjects of ownership also monasteries and all institutions that had some charitable purpose: the care of the sick, the support of the poor, the support and upbringing of orphans, and the like.[7] This same principle was likewise adopted by Greco-Roman legislation, which recognized juridical personality in all those to whom church legislation granted it;[8] moreover, among the laws of the Greco-Roman emperors we find also one that ordains that when someone has bequeathed something simply to the glory of God, in that case what has been bequeathed must pass into the full ownership of the church specifically of the place where the testator resided.[9]