§ 17. The Application and Binding Force of Church Laws

The survey of the legal sources which we presented in the preceding chapter has shown us the general distinction among the legal precepts which proceed from these sources, and their respective binding significance. It is now necessary to dwell specifically on the laws which the Church has issued by her own authority, and on their binding force.

Church laws, with regard to their subject matter, differ among themselves. Some concern the faith, others church discipline. The former are called dogmas (δόγματα). They set forth with precision the revealed truths and condemn all the errors that arise against those truths; indeed it was on account of such errors that the Church issued these laws, which in Greek are quite fittingly called determinations (ὅροι), since the Church does not create new dogmas, but gives a definite written form to the revealed truths and determines them. As such, dogmatic laws are unconditionally unchangeable.[1] The other laws, the disciplinary laws, or church laws in the narrower sense (ἐκκλησιαστικοὶ νόμοι, θεσμοί, κανόνες, etc.), establish the external life of the faithful in the Church, and all that is necessary for good order to be maintained in the Church and for the goal for which the Church exists to be attained. These disciplinary laws are not unchangeable, but may be altered according to the needs of the Church and according to the changes which the social condition of one age or another brings about. This change, to be sure, has taken place, and may take place, only while the fundamental laws of the constitution of the Church are preserved, and doing so unhurriedly and cautiously, so that no scandal may arise among the faithful, and with due respect toward the former laws.[2] Besides this principal distinction, church laws are also divided according to the scope of their operation, namely into general and particular. The general are valid for the whole Church and concern the fundamental matters of the Church’s constitution and administration,[3] while the particular are valid only for one or another church region, for this or that branch of administration in the Church, for one or another church institution,[4] and so forth.—These are the two chief distinctions among church laws (by subject-matter and by scope of operation). The remaining classification of laws in church law corresponds to the classification made by the science of civil law: there are laws that permit something, that forbid something, that prescribe penalties for the relevant offenses, and so forth.

According to this distinction among church laws, their application and binding force differ as well. And first of all: in order for a church law to be applied—and to be applied is its chief and unconditional purpose—and for it to become binding, certain fundamental conditions must be observed, some concerning the internal aspect, others the external aspect, of the law. On the internal side, the church law must have been issued by the competent church authority within the limits of its sphere of competence; further, the subject matter of the law must be of a church nature;[5] further, what is prescribed must accord with the fundamental laws of the Church; and finally, it must concern the good of the faithful. On the external side, for a law to acquire binding force, it must be promulgated (δημοσίευσις, promulgatio) by the competent channel. That promulgation of a law, even though it is not formally prescribed by church legislation, has nevertheless always been of great importance in the Church, and was regarded as necessary for the simple reason that everyone must be informed of how he is to act under the law, and this was in principle prescribed already in Holy Scripture.[6] In this, church legislation is guided by the general precepts that hold for civil legislation.[7] Besides promulgation, on the external side the church law contains within it also the condition to be applied should those concerned refuse to carry out its precepts, namely, a sanction.[8]

All church laws, according to the authority by which they were issued, are binding on everyone who belongs to the Church. This thought concerning that binding force is expressed in the second canon of the Council in Trullo. This council, having enumerated all the church laws that had been issued up to its own time and that the whole Church had to receive and recognize, prescribes as follows: “No one may alter or abolish the aforementioned canons, or, besides the canons here set forth, have others fabricated under false titles by certain persons who in truth wished to traffic [in them]. Should it be established that anyone has attempted to alter or destroy any of the aforementioned canons, he shall be subject to the penance prescribed by that canon against which he has offended, and through this same penance he shall be healed of that in which he has sinned.” The fathers of the Seventh Ecumenical Council, referring to the aforementioned canon of the Council in Trullo, say in their first canon: “We joyfully receive, and in their entirety immovably confirm, what is established by the divine canons, issued by the holy trumpets of the Spirit, the most glorious apostles, then by the six holy ecumenical councils and by those which gathered locally for the purpose of issuing such enactments, and finally by our holy fathers. For all of these, enlightened by one and the same Spirit, established what was profitable.” In these canons the thought of the binding force of all the laws established by the Church, for all who belong to her, is clearly expressed. Strictly speaking, in these ordinances of the Council in Trullo and of the Seventh Ecumenical Council, only those church laws are named with such universally binding force as had been issued up to the time when those councils were held; but the legislative activity of the Church had not thereby already come to an end—it continues to this day, and will continue until the end of the age. And so long as this church legislative activity develops rightly and in the spirit of the fundamental laws of the Church, so long will the precepts of that legislation have to possess the same binding force which they possessed through the centuries.

This binding force of church laws has its degrees, which differ both according to the internal significance and source of the laws themselves, and with regard to the places and persons to which the laws in question pertain.

The laws of faith and morals are unconditionally binding on every member of the Church, wherever he may be and whenever he may live. The laws of faith are founded on Holy Scripture, and as such are unchangeable for all time, and whoever dares to touch them ceases, at that very moment, to be a member of the Church.[9] The binding force of the moral laws of the Church proceeds from the very essence of those laws. All the moral laws of the Christian Church proceed from that commandment of eternal truth, that one must love one’s neighbor as oneself, and that one ought not do to another what one would not wish another to do to oneself. Whether a man wishes to keep that commandment—he is a Christian; if he does not, he ceases to be a Christian; and to call oneself by that name while not carrying out the precepts of the Christian Church means to contradict oneself and one’s own calling. And the church authority has the right to exclude from her communion anyone who will not carry out the precepts of the Church, or to subject the obstinate to her judgment until he amends.[10]

The church laws which establish the external relations within the Church are binding conditionally. By the aforementioned canons of the Council in Trullo and the Seventh Ecumenical Council, binding force for the whole Church was recognized for those church laws which had been issued up to the time of those councils and confirmed at them. Alongside these church laws, the Church has recognized binding force for all also in the canons of two councils held at Constantinople in the second half of the ninth century, and in a certain encyclical letter of the Patriarch of Constantinople Tarasius against simony.[11] But this was not stated by the Church in an absolute sense. The legislative authority of the Church has always had, and will always have, the right, according to circumstances, to abolish old ordinances and issue new ones, remaining, of course, faithful to the fundamental principles expressed in the basic commandments of the Gospel. Just as in ancient times one council would abolish, or give another form to, the ordinances of former councils, so too today a new council, were it to assemble, would have the same right. The precepts of the two aforementioned ecumenical councils do not limit the legislative authority so that no older law might ever be altered; they only forbid that the laws they mentioned be altered in general, in their essence, contrary to the general laws and spirit of the Church, out of indulgence to human passions. These same precepts limit the arbitrary will of individuals, on whatever hierarchical rank they may stand, and likewise limit every local church, so that it may not, contrary to the spirit of the general church law, alter any rule that has been received by the ecumenical Church; but they in no way limit the competent church authority from issuing, with regard to new needs of the Church, while preserving the general spirit of the legal ordinances of the Church, a new law, or giving another form to some earlier law. The truths of faith and of morals alone are those which can never be abolished, and must always remain one and the same. But the rules of the external life of the Church can be altered, and have been altered, along with the very life of the Church. The Holy Spirit, who inspired the fathers when they once issued their laws in view of the needs of the Church in one age, has not ceased, nor will He cease, to inspire the fathers when they gather in Christ’s name in another age, so that, in accordance with the new needs of the Church, they may alter the former laws or issue new ones. The binding force, then, of those church laws of which the Council in Trullo and the Seventh Ecumenical Council speak must be understood in a conditional sense—namely, until such time as a legislative body should arise with such competence as those councils possessed in issuing church laws; and until then, all those laws remain strictly binding on everyone who wishes to belong to the Church.[12]

Proclaiming in this sense the universal binding force, for all members of the Church, of the laws received and confirmed by the ecumenical Church, the Council in Trullo, by its thirty-ninth canon, at the same time permits the local churches to have, according to the circumstances in which they find themselves, their own particular church law as well, by which they are to govern their external life. Only this particular law must be, in its foundation, in accord with the general fundamental laws of the Church, must be permeated with the spirit of the general law, and must strive, in its particularity, toward that same goal toward which the general church law strives. Under these conditions, the legal precepts of one or another local church have binding force for that church, and that binding force ceases only when the competent authority abolishes or alters them. According to the reciprocity that exists among the local churches, according to their equality of right and their independence in the conduct of church affairs, the particular laws of the local churches, to the extent that they are binding on the churches concerned, must be equally respected by the other churches, nor does any local church have the right to interfere in the legislative work of another local church, when that work develops within its own competent sphere and does not violate the rights of others.[13]

Church law is composed not only of the laws which the Church has issued by her own authority, but also of those laws which the Church has received from the state authority, and which concern the Church (§15). Independently of the fact that such state laws have, in themselves, binding force for every subject of the state, they are binding for every member of the Church within the state concerned for the further particular reason that the Church has received them for her administration in certain matters of the Church, and has recognized their legal validity.[14] They are binding within the Church, further, on account of that general principle expressed in the canonical collections, that the state laws are to be in force in every matter concerning which the church authority has not issued its own particular law.[15]

To the church laws every one, without any distinction, who belongs to the Church is subject. Ignorance of the law (ἄγνοια τοῦ νόμου, ignorantia legis) can excuse no one.[16] Once a law has been promulgated in the prescribed manner, its application cannot depend on whether or not it is known to those whose legal relations the law in question determines; rather, everyone is bound to know that law, and, should he happen not to understand its meaning, he must seek to have it clarified for him.[17] Since, then, a law once duly promulgated is binding, and since ignorance of the law can excuse no one before the court, it belongs to one of the foremost duties of the church authority to see to it that all fulfill these laws, and to subject to her judgment, and to punish, everyone who despises them or offends against any law. And in the first place the bearers of the church authority itself—the church elders—are bound by the church laws, who as such may not extend their own authority either over the teaching of the Church, which they must sacredly keep and preach in every respect exactly as it has been received and confirmed by the ecumenical Church;[18] nor over the church precepts concerning the fundamental constitution of the Church;[19] nor over the liturgical ordinances prescribed by the Church, in respect of which they must take care both to keep them themselves and to see that others keep these institutions.[20] Subject to the church laws, further, are the emperors and all worldly authorities who wish to benefit from the spiritual goods of the Church,[21] nor may the state authority possess independent authority within the Church, nor enter directly into church affairs, but where there is need, will do so only through the church authority.[22] Subject to the church laws, further, are children, for whom their parents or guardians are responsible if the laws are not fulfilled, to the extent that the children are able, according to their age, to fulfill them; the fundamental Christian laws, however, they must unconditionally fulfill, regardless of their age.[23] In the carrying-out of church precepts, the Church allows an exception only when someone lacks the physical or moral capacity to fulfill them, and in such a case she gives special rules for how one may, at least in essentials, correspond to the law. This holds for the infirm, for the sick, for young children, and, in general, for all who through no fault of their own fail to fulfill some law.[24] Not directly subject to the church laws is the non-believer, since he does not enjoy the rights of a member of the Church; but if such persons are members of the same state in which the legal existence of the Church is recognized and in which the Church stands under the protection of the state laws, then they are bound to respect the church laws, nor may they permit anything that would conflict with those laws and that might disturb the good order of the Church.[25]