§ 15. Civil Laws

By the very fact that the laws of the Christian emperors entered into the canonical collections, into the so-called nomocanons, the question of the significance of civil laws (νόμοι, νόμιμα, πολιτικαὶ διατάξεις) as a source for church law was in principle resolved. John Scholasticus, after he had compiled, in the sixth century, his systematic collection of canons, composed as a supplement to that collection a further collection drawn from Justinian’s Novels touching church matters—and in the preface to this collection he determines the significance of the laws of the Christian emperors in general, stressing that they are not only set forth in the spirit of the canons of the Orthodox Church, but confer upon the canons themselves a special significance within the state, and contribute so that everything may be governed according to the divine instruction, to the benefit of the whole human race.[1]

This significance of the laws of the Christian emperors the Church has recognized as her own, for both her external and her internal life, from the day when the first Roman emperor recognized the legal existence of the Church within the state. The peace which the Church needed, after three centuries of persecution, on the one hand, and, on the other, the need that the rights of the members of the Church and of the Church herself be safeguarded within the state—all this brought it about that, immediately upon receiving that recognition, the Church accepted and recognized all those state laws, even those of the pagan Roman emperors, which were not in conflict with her faith. When afterward the Christian faith was recognized as the faith of the state, and the Church was proclaimed the foundation of legal order, and recognition of political—and in some respects even of general legal—capacity for those concerned came to depend on belonging or not belonging to the Church, the Church willingly allowed the state authority to issue laws freely on church matters, either alone or jointly with the church authority; and these laws, permeated—as Scholasticus expressed it, quite fundamentally—with the spirit of the canons of the Orthodox Church, she recognized as fully valid, not merely that, but received them as a source of her own church law as well, and, by incorporating them into her canonical collections, she, so to speak, canonized them; while in cases where, on some question of church life, no canon had been established, the Church did not hesitate to apply the then-existing state laws. “For in matters in which the canons determine nothing, we have resolved to follow the laws,” it is observed in the 28th chapter of the first title of the Nomocanon in Fourteen Titles.[2] And this the Church was the more easily able to do because the Greco-Roman emperors recognized her laws as having, within the state, the same unconditionally binding force as the state laws. The Emperor Justinian, by his law of the year 530, prescribes that what the canons forbid, the state laws too must forbid.[3] By his sixth Novel he likewise establishes that the canons must be in force within the state exactly as the state laws are;[4] and by his 131st Novel he specifically establishes that all the canons issued or confirmed at the seven ecumenical councils have universally binding force, and that the articles of the faith are to hold as Holy Scripture, and the canons as state laws;[5] whereby every state law that conflicts with the canons is deprived of validity.[6] Such a relation to the Greco-Roman laws existed not only in the Eastern Church, but existed also in the Western Church,[7] indeed down to the thirteenth century, and to some degree even to the sixteenth.[8] There these laws were held in the same respect as in the Eastern Church, and, according to the evidence we possess, the Roman pontiffs treated even these laws with deep respect and made use of them not only in civil and church administration, but even in the internal ordering of the papal court.[9]

The recognition of state laws as a source of church law—and, correspondingly, the recognition of state laws within the Church—has never provoked the slightest opposition. Doubt could arise only in the case of a conflict between the canons and the state laws, since nothing precisely determined on this question existed before the twelfth century, apart from the scholion on the Nomocanon in Fourteen Titles already mentioned.[10] Balsamon resolved this with the greatest precision in his scholia on this same Nomocanon. The question had been raised, on the occasion of two laws of the Emperor Alexius Comnenus which appeared to conflict with the precepts of the canons, whether in the administrative matters of the Church the canon or the state law ought to carry the greater weight. Balsamon discusses the matter at length and concludes, finally: “The canons have more force than the state laws, for they—namely the canons—having been proclaimed and confirmed by the holy fathers and by the emperors, carry the significance of Holy Scripture, whereas the laws are set forth by the emperors alone, and therefore cannot surpass Holy Scripture, nor the canons.”[11] Balsamon expressed this same thought in several other places as well.[12] In the same sense he also resolved the conflict that had arisen on account of those laws of the Emperor Alexius Comnenus.[13] This afterward became a general rule for the Orthodox Church, and found expression in the canonical collection that was, from the fourteenth century onward, among the most widely used in all the local Eastern churches—namely, the Syntagma of Matthew Blastares.[14] By this same principle the Orthodox Church is guided today as well: just as she once recognized and accepted civil laws as a source for her own law in matters touching the external life of the Church, so she recognizes and accepts today, too, the laws of the state authority for her administration, alongside the laws which she herself issues to that end. In certain circumstances, and on certain matters, the Orthodox Church recognizes the state authority also as an organ of church legislation; but it is thereby presupposed that, in general and in principle, the state authority recognizes the validity of all church laws; an accord between Church and State is presupposed; and that the state legislative authority will issue the relevant ordinances on church matters exclusively in the spirit of canon law, and always and solely in the interest of the Church.[15]

Footnotes

[5] This novella passed into the Basilika in its supplemented form, and with regard to our question it says: Θεσπίζομεν τοίνυν, τάξιν νόμων ἐπέχειν τοὺς ἁγίους ἐκκλησιαστικοὺς κανόνας, τοὺς ὑπὸ τῶν ἁγίων ἑπτὰ συνόδων ἐκτεθέντας ἢ βεβαιωθέντας, τουτέστι τῆς ἐν Νικαίᾳ… ἐν Κωνσταντινουπόλει… ἐν Ἐφέσῳ… ἐν Χαλκηδόνι.. ἐν Κωνσταντινουπόλει τὸ δεύτερον… ἐν Κωνσταντινουπόλει τὸ τρίτον.. καὶ ἐπὶ πάσης τῆς ἐν Νικαίᾳ τὸ δεύτερον… Τῶν γὰρ προειρημένων ἁγίων συνόδων τὰ δόγματα καθάπερ τὰς θείας γραφὰς δεχόμεθα καὶ τοὺς κανόνας ὡς νόμους φυλάττομεν Basilic. lib V tit. III. c 2. The general standpoint in regard to this is set forth in the prooemium of Justinian’s 6th novella, which is found in the aforementioned LXXXVII-chapter collection of John Scholasticus (Pitra. Op. cit. II, 390), and likewise in the Slavonic translation in chapter 42 of the printed Kormchaia: “Великая паче инѣхъ иже въ человѣцѣхъ еста дара божія, отъ вышняго дарована человѣколюбія божія, священничество же и царьство: ово убо божественнымъ служа, се же человѣческими владѣя и пекійся: отъ единаго же и тогожде начала обоя происходятъ украшающе человѣческое житіе. Якоже ничтоже тако бываетъ поспѣшнее царьству сего ради, якоже священническая честь: о обоихъ самѣхъ тѣхъ присно вси Богови молятся; аще бо они непорочни будутъ во всемъ и къ Богу имутъ дерзновеніе, и праведно и подобно украшати начнутъ грады имъ преданныя, и сущая подъ ними, будетъ согласіе нѣкое благо, все еже добро человѣчествій даруя жизни; сему бити вѣруемъ, аще священныхъ правилъ блюденіе сохранится, ихъ же праведно похваляемии, и покланяемии самовидцы божію слову предаша апостоли и святіи отцы сохраниша же и заповѣдаша.” Ed. Moscow, 1787. II, 7.

[14] Πλέον τοίνυν τῶν νόμων τοὺς κανόνας ἰσχύειν ἀνάγκη: οἱ μὲν γὰρ παρὰ βασιλέων μόνων συνετέθησαν, καὶ παρὰ τῶν εἰσέπειτα καλῶς ἔχειν ἐνομίσθησαν, οἱ δέ γε κανόνες, παρὰ τῶν ἁγίων Πατέρων γνώμῃ καὶ σπουδῇ καὶ ψήφῳ τῶν τηνικάδε βασιλέων συνεγράφησαν καὶ ἐπεστηρίχθησαν: ὅμως γε μὴν μεγάλην ῥοπὴν τοῖς θείοις κανόσιν οἱ φιλευσεβεῖς ἐκπορίζουσι νόμοι, τὰ μὲν ἐκείνοις συντρέχοντες, τὰ δὲ καὶ ἀναπληροῦντες, ἅπερ ἐκείνοις ἐφ᾽ ὅπῃ παρεῖται. Στοιχ. Κ κεφ. ε΄. (Ath. Synt. VI, 317.)—In the West, too, attention was paid to this question, which of course could not have been resolved otherwise than in the sense of Balsamon and Blastares. See Assemani Bibliotheca juris orientalis Romae, 1762—64. lib. II. c. 32 p. 601. Cf. also on this question Leo Allatius, De ecclesiae occidentalis et orientalis perpetua consensione. Colon. Agripp. 1648. lib. I c. 15. p. 221.

§ 15. Civil Laws

§ 15. Грађански закони