§ 16. Canonistic Law

To the sources of church law arranged above, one more source must be added, which, even though it has no formal juridical sanction, nevertheless serves as an important auxiliary source for clarifying and more fully grasping many aspects of the legal life of the Church. We mean here the writings of recognized, distinguished canonists on questions of church law, issued in various forms, chiefly at the request of those who needed to know how to proceed in one or another question of church life on which the canons contained no particular precept. These writings cannot in themselves be regarded as laws, since the legislative authority has not formally granted them that significance, and as such they cannot be a formal source of church law either. The opinions on questions of church law set forth in them are nothing but the opinions of individual men, which accordingly cannot carry general significance. But these same opinions were so well founded and so faithful to the spirit of the general church law, and, further, the persons who set them forth distinguished themselves by such rich canonical learning, that these opinions gained universal respect in the Eastern Church, and, by the fact that many of them entered into the canonical collections of that same Church, acquired almost the same authority as the church laws themselves in the resolution of the various canonical questions that arise in the Church.

Besides this significance which the writings of recognized canonists possessed in themselves, and on account of which they could be regarded as an auxiliary source of law, the Church in this proceeded according to the practice that prevailed in the older Roman civil law. In that law, among other sources of law, there were also reckoned as a source the so-called responsa prudentium. On occasions when some doubt arose as to how one should proceed in a legal matter, those concerned turned to recognized jurists and sought from them the resolution of these doubts. These jurists were called: jurisconsulti, jurisprudentes, and prudentes (those learned in law). Responding to the questions put to them, these prudentes took care to clarify all that was unclear and in doubt, to penetrate the spirit of the existing positive law, to derive from it, by juridical reasoning, what was needed in the given case, and thereby to furnish resolutions of the questions raised. These resolutions of the jurisconsults, or their answers (responsa), if they accorded with the foundations of law and were recognized by the authorities concerned, became authoritative for further practice. From the time of the Emperor Augustus it was granted to certain jurists to give their responses officially, and these responses carried binding force for judges.[1] On the basis of this practice in Roman civil law, a similar practice was introduced in the Church as well, and experts learned in the church canons, and their writings, became especially respected, and even authoritative, within her. At first the Church expressed this in the respect with which she treated the writings of individual church elders, recognizing these writings as canonical and honoring them as laws;[2] and afterward, by receiving into her canonical collections the writings of later canonists, whose canonical opinions she regarded as authoritative for herself. To these writings the church elders of former times appealed in their legislative activity, and appeal to them still today, recognizing them thereby, if not as direct sources of law, then certainly as auxiliary and very important sources.

In form, these canonistic opinions are presented to us in the records either as questions and answers,[3] or as canonical resolutions,[4] or as canonical discussions,[5] and sometimes even as canons.[6] Here belong also the interpretations of the canons,[7] especially those by the canonists of the twelfth century.

CHAPTER TWO The Application of Legal Sources