§ 3. Church Law

We have seen that the Church has her own precisely established constitution and her own separate laws, by which she maintains this constitution in force, in accordance with the end that has been appointed to her by God, and further, that she is autonomous and independent in her existence, nor can she, by her very significance, be conditioned by the circumstances of time and place. From this there follows of itself the necessity of the existence of church law.

Like every other law, church law is taken both subjectively and objectively. In the subjective sense it is the sum of the legal qualities that belong to the members of the Church, according to the position that they occupy in the Church as a social organism, or to the juridical persons that can exist within the Church. As one sees, we do not here make the Church herself, in her entirety, the subject of the law, but rather the given members of the Church, or the juridical persons that are recognized as such by lawful authority; and this we do because the Church in herself cannot be any juridical person, as that juridical person is defined by the philosophy of law, and because she is not any corporation that would have its origin in an agreement of several persons interested in some determined object.[1] In the objective sense, church law comprises all those legal prescriptions that determine the outward life of the Church as a social organism.[2]

Church law is also called canon law. In the Greek schools it is today generally so called—χανονικὸν δίκαιον. It is an old designation, taken from the word κανών, by which, at the beginning of the Church, both individual precepts and, taken all together, all precepts that concerned the faith and Christian life were denoted.[3] Later, when the legislative activity of the Church began to develop more widely, canons came to be called those written ordinances that church authority issued and that had to have force in the Church as positive and generally binding laws.[4] As such, canons were distinguished from received church custom (ἐκκλησιαστικὴ συνήθεια)[5] and from civil laws (πολιτικοὶ νόμοι).[6] Today it is customary to call canons those church laws that, for the Orthodox Church, are contained in the canonical collection concluded in the last quarter of the ninth century, and, for the Roman Catholic Church, those contained in the Corpus juris canonici. The name of canon law could accordingly be adopted if we were speaking exclusively on the basis of the canons, that is, on the basis of those church laws that were issued down to the ninth century in the East, or down to the conclusion of the Corpus juris canonici in the West. But since the law of the Church today is composed also of many other laws of later times, which have not entered into the canonical collections, and which were issued either by the Church herself, or, on behalf of the Church, by the state power, and which laws do not bear the name of canons, though they too have binding force in the Church, therefore, to denote that law which is valid today in the Church, the name of church law has been adopted. With regard to this, church law is broader in material than canon law, and the latter can be regarded as a part of the former—though, to be sure, a fundamental part, on which the former is entirely based.

According to the sources of law, the scope of validity, the time, and so forth, church law is divided into: 1) written (τὸ ἔγγραφον, jus scriptum), if the given laws were issued, confirmed, and set forth in writing by the competent legislative authority, and unwritten (τὸ ἄγραφον, jus non scriptum), if they were preserved by way of tradition and custom in the Church. The former is regarded as exact, strict (τὰ τῆς ἀκριβείας, jus strictum), and the latter as customary (τὰ τῆς συνηθείας, jus per consuetudinem). 2) Divine (θεῖον, divinum) or natural (φυσικόν, naturale), which arose together with the Church herself and rests upon the clearly expressed will of God, and positive (θετικόν, positivum) or ecclesiastical (ἐκκλησιαστικόν, ecclesiasticum), which rests upon the precisely established laws of the Church. 3) General (κοινόν, γενικόν, commune), which rests upon the general, fundamental laws issued for the whole Christian Church, and particular (τοπικόν, ἰδικόν, μερικόν, particulare), which comprises the laws issued for one or another local church according to particular circumstances.[7] 4) Old (ἀρχαῖον, vetus), comprising the laws issued in the time of the undivided Church, and newer (καινόν, novum), comprising the laws issued by the Church after that period. 5) Internal (ἐσωτερικόν, internum), comprising the laws that determine the internal legal relations of the Church, and external (ἐξωτερικόν, externum), comprising the laws that determine the relations of the Church as a whole to the state and to those who do not belong to the Church. It is further divided into administrative, judicial, penal, and so on.