§ 25. The Ecclesiastical-Civil Laws

By ecclesiastical-civil laws, which carry the significance of a general source of church law, are meant those laws which the Greco-Roman state power issued and which concern the Church. In what sense such laws can be valid within the Church we have already stated (§ 15). Such laws began to be issued already by the first Roman emperor who received Christianity, and afterward the remaining emperors issued them, more or less regularly, for a long series of centuries.[1] Besides these laws, which the emperors issued directly, statutory enactments issued even in the pre-Christian era of the Roman state also have importance for church law, insofar as they were received into the law-collections of the Christian emperors, and from those collections individual ones passed on into the canonical collections of both the Eastern and the Western Church.[2] As the source from which church law drew the relevant statutory prescriptions of secular legislation, there is to be named in the first place:

The Theodosian Code (Codex Theodosianus), compiled during the reign of Theodosius II and Valentinian III, and promulgated in February of the year 438, with the provision that from 1 January 439 it was to hold as the sole source of “jus principale” from Constantine down to that time. It contains a great multitude of laws, all divided into 16 books (libri), each further subdivided into many titles (tituli). The last (16th) book contains exclusively laws concerning church matters, and is divided into 11 titles: 1. de fide catholica; 2. de episcopis, ecclesiis et clericis; 3. de monachis; 4. de his, qui super religionem contendunt; 5. de haereticis; 6. ne s. baptisma iteretur; 7. de apostatis; 8. de judaeis, coelicolis et samaritanis; 9. ne christianum mancipium judaeus habeat; 10. de paganis sacrificiis et templis; 11. de religione. Individual laws on church matters are also found in the other books of the Theodosian Code.[3]

During the long reign of Justinian the Great (527–565) all the hitherto existing sources of Roman law were subjected to critical review and arranged into separate collections, which alone, in place of all the earlier ones, were henceforth to be valid.[4] These are the collections:

The Codex Constitutionum, which contained laws issued by imperial authority. It was prepared and issued in the year 529. It was found, after the publication of the other law-books, that this code no longer answered its practical purpose, and it was therefore revised and issued in 534 in a new redaction; and to distinguish it from the earlier, old code (codex vetus), this new one was called the Codex repetitae praelectionis. This new code contains imperial laws from Hadrian (year 117) down to the last law of Justinian in the year 534.[5] This new code is divided into 12 books, each book into a multitude of titles (tituli). The first thirteen titles of the first book concern church matters: 1. de una Deitate et Trinitate; 2. de sacrosanctis ecclesiis et de rebus et privilegiis earum; 3. de episcopis et clericis, et orphanotrophis, et ascetriis, et monachis, et privilegiis eorum, et castrensi peculio, et de redimendis captivis; 4. de episcopali audientia et diversis capitulis, quae ad jus curamque et reverentiam pertinent pontificalem; 5. de haereticis et manichaeis et samaritanis; 6. ne s. baptisma iteretur; 7. de apostatis; 8. nemini licere Signum Salvatoris Christi humi vel in silice, vel in marmore aut insculpere aut pingere; 9. de judaeis et coelicolis; 10. ne christianum mancipium haereticus vel judaeus vel paganus habeat vel possideat, vel circumcidat; 11. de paganis et sacrificiis et templis; 12. de his, qui ad ecclesiam confugiunt, vel ibi exclamant, et ne quis ab ecclesia extrahatur; 13. de his, qui in ecclesiis manumittuntur.[6]

The Digest, or Pandects, is the name of Justinian’s second law-collection, which is divided into 50 books (codex in quinquaginta libros digestus), and was promulgated on 16 December 533. It contains the prescriptions of the old Roman law preserved in the various writings of jurists of the older period, insofar as those prescriptions still had practical significance in Justinian’s time.[7] Many excerpts from the Digest passed into the Nomocanon in XIV titles, and afterward, through the Basilica, into Balsamon’s scholia on this same Nomocanon.

The Institutes is the name of Justinian’s third collection, which was to serve as a methodical introduction to the study of law contained in the Code and in the Digest.[8] They were promulgated at the same time as the Digest and were to come into force together with the Digest on 30 December 533. They are divided into four books, each book into titles, and the titles into short sections, now called paragraphs.

The Novellae constitutiones are the laws which Justinian issued after the promulgation of his Code (534), and which were for that reason called “new laws,” being more recent than those contained in the Code, and thus not found in it.[9] These new laws, or Novels, were written for the most part in Greek, and in that language are called νεαραὶ διατάξεις.[10] The majority of them were issued in the first five years after the promulgation of the Code: the first was issued 1 January 535.[11] Each Novel bears in its title the name of the person to whom it is addressed and who is to carry out its provision—hence for the most part in the name of the praefectus praetorio, except for those concerning the Church. These are usually addressed in the name of the Patriarch of Constantinople; but that they were sent also to all the other patriarchs is attested by the beginning of Novel 3 and the conclusion of Novel 5. Besides this, from the epilogue of Novel 6 it appears that this Novel was addressed, besides to the patriarch of Constantinople, also to the patriarchs of Alexandria, Antioch and Jerusalem, and Novel 67 is addressed to all the patriarchs. The patriarchs, upon receiving a Novel, took care to disseminate it further—first, as Novels 5 and 6 show, to the metropolitans, and these to the bishops, who then, according to the subject of the Novel, communicated it to the monasteries or to the church communities. Where necessary, such Novels directed the civil authorities to render assistance to the Church in carrying out the ordinance contained in the Novel.[12] Justinian’s Novels, whose number is variously given,[13] were not gathered into a single book during Justinian’s lifetime, but only after his death. The history of law mentions five collections of these Novels, namely: 1. a collection of 168 Novels, 2. a collection under the title Τὸ πλάτος τῶν νεαρῶν, 3. the collection of Pseudo-Eustathius, 4. the collection of Athanasius, and 5. a derived collection.[14] Of these collections the first was the most commonly used; it was used also by the compiler of the Nomocanon in XIV titles wherever he had to cite Justinian’s Novels and did not cite them from the ordinary collection.[15]

The Church made abundant use of these collections of Justinian for its own law. Besides the fact that, in given circumstances, it appealed to the statutory prescriptions of these collections, special collections were compiled for ecclesiastical practice containing these prescriptions, and these collections were widely disseminated throughout the Eastern Church. Here belong: the collection in 87 chapters, the collection in 25 chapters, and the collection of ecclesiastical laws, then the Nomocanon in 50 titles and the Nomocanon in 14 titles. We speak further of these collections below.

The Ecloga of the emperors Leo the Isaurian and Constantine Copronymus was issued in the year 741, and was intended to offer, in a single book, to those in public administration who had to apply the laws, the main statutory prescriptions found in the four Justinianic collections.[16] It was held, even down to the first half of our century, that this Ecloga was issued not by the emperors we have named but a century later, namely by the emperors Leo the Wise and his son Constantine.[17] The intent, presumably, was to withhold from those emperors the credit for issuing this collection, since they were iconoclasts, and instead to ascribe that credit to two emperors of the Macedonian dynasty, who condemned iconoclasm. To this end, the names of Leo the Wise and Constantine were already inserted in the title of the Ecloga in the Greek manuscripts. From some such manuscript the Ecloga must have been translated also into the Slavonic language, and taken up into the printed Krmčija. There the Ecloga bears the title: “Of Leo the most wise Tsar and Constantine the faithful Tsar, chapters on the betrothal of engagement, and on marriages, and on various other matters.”[18] In the original the Ecloga is divided into 18 titles with the corresponding preface; in the Krmčija these 18 titles are reduced to 16, and the whole preface is given in translation. In the course of time the Ecloga was reworked, and there appeared the Ecloga privata, the Ecloga privata aucta, and the Ecloga ad Prochiron mutata; but these reworkings of the Ecloga have no direct relation to church law. In the Krmčija (ch. 46) there is: “The Law of Judgment for the People of the Emperor Constantine the Great,” which is likewise regarded as an excerpt from the Ecloga, although this, according to the observation of Agathangelus, chartophylax of the Patriarch of Constantinople at the beginning of this century, is an apocryphal writing which in the Greek Church was never cited by anyone.[19]

The Procheiron of the emperors Basil the Macedonian and his sons Constantine and Leo, issued between 870 and 879. It contains the main legal prescriptions from all the law-collections existing up to that time and is divided, after the relevant preamble, into 40 titles. A very practical book, which enjoyed particular esteem both among jurists and among canonists.[20] The Procheiron, in translation, entered into the earliest (Old-Serbian) copies of the Krmčija,[21] and from there also into the printed Krmčija, where it forms the 48th chapter under the title: “Chapters of the City Law, in Forty Sections.” During the reign of the same emperor Basil the Macedonian, together with Leo and Alexander, between 879 and 886, a second legal handbook was also compiled, namely:

The Epanagoge,[22] that is, a new edition of the Procheiron (repetita praelectio), into which were incorporated the laws issued during the reign of Basil. This edition, however, was never officially promulgated.[23]

The Basilica. This is, for church law, the most important collection of Greco-Roman legislation. Basil the Macedonian had undertaken the publication of a great law-collection, in which all the old laws were to be purged and revised (ἀνακάθαρσις τῶν παλαιῶν νόμων, repurgatio veterum legum). After his death, his son and successor, Leo the Wise, completed his father’s work and published this collection in the last years of the ninth century.[24] The most common name for this collection is Τὰ Βασιλικά (namely νόμιμα, the imperial laws, leges imperiales).[25] It is divided into 60 books (βιβλία), each book into several titles (τίτλοι), which are divided into chapters (κεφάλαια), and the chapters again into paragraphs (θέματα). The sources of this collection were: the Institutes, the Digest, the Code, the Novels and the Procheiron; and from these sources laws were taken up in a corrected redaction, insofar as they still had contemporary validity. The Church made use of Justinian’s collections from the very beginning of their publication. But when the Basilica was published, and it was established that only what had passed from Justinian’s collections into the Basilica had legal force, the Church then turned its attention to the Basilica as well. Balsamon, in his work on the Nomocanon in XIV titles, set himself as his principal task to identify the civil laws taken up in it from Justinian’s collections, to compare them with the corresponding laws in the Basilica, and, according to whether the one or the other law was or was not found in the Basilica, to determine its practical validity in the Church.[26] Balsamon carried out this task in exemplary fashion, and thereby secured for all time the Basilica’s status as a source for Orthodox church law.[27] Orthodox canonists of later times follow, at least the majority of them, in Balsamon’s footsteps in this. The Basilica served as the principal source for the last important work on civil legislation produced in the medieval East, namely for:

The Hexabiblos of Constantine Harmenopoulos.[28] This collection was compiled certainly before the year 1345 by Harmenopoulos, nomophylax and judge of Thessalonica, in the form of a handbook, and for this reason is sometimes called Πρόχειρον, but most commonly Ἑξάβιβλος, since it is divided into 6 books.[29] Of church law, this collection touches on the laws concerning marriage, and further the fourth title of the appendix, where the institution of bishops and priests is discussed.[30] As a supplement to his Hexabiblos, Harmenopoulos also published a separate canonical collection, of which we speak further below.

The Novels after Justinian. Besides those mentioned, and yet other law-collections which we do not mention, since they have no direct bearing on church law, and into which the laws of individual emperors after Justinian were incorporated—besides these collections, the emperors also issued many Novels, a great part of which deal with church matters. The emperor Leo the Wise alone issued 118 Novels, more than half of which concern church discipline and marriage. All these Novels, beginning with the emperor Justin down to Constantine Palaeologus, from the year 566 to the year 1451, were collected and published in Leipzig in 1857 in a single book.[31] Their total number is 337, apart from a multitude of various chrysobulls, privileges, and the like, which are not reproduced in full text but are noted, with mention of what they concern. All Novels of church content down to the emperor Isaac Angelus (1193) are mentioned in the canonical collections issued down to that time, chiefly in Balsamon’s commentaries on the canons; besides these, other, later ones are mentioned in Blastares’ Syntagma of the year 1335. The more important ones are also included in the Athenian Syntagma.[32]

II. Particular Sources of Church Law.