Introduction

The Author

Of the three books Nikodim Milaš is remembered for, this is the one that made him a European name. His two volumes of commentary on the canons are the work of an incomparable reader of texts; this is the work of a systematist, and it is the reason that canonists in Saint Petersburg, Athens, Bucharest and Vienna knew who he was.

He was born at Šibenik in Dalmatia in 1845 and given the name Nikola. Dalmatia was then an Austrian crown land, and the Orthodox there were a minority whose church held its ground by argument and by statute; a boy who wanted theology had to seek it elsewhere. Milaš took the course of the Serbian Orthodox theological school at Sremski Karlovci, completing it in 1866, and went on to the Theological Academy at Kiev, where in 1871 he earned a master’s degree in canon law with a study of the Nomocanon of the Patriarch Photius. The choice of subject was decisive. A nomocanon is a book in which the canons of the Church and the laws of the empire are set out together, each conditioning the other, and the question of how those two bodies of law relate (where each has authority, what happens when they collide) is the question this treatise exists to answer.

He came back to Dalmatia and took up the chair of canon law at the Orthodox theological institute in Zadar, where he taught for the greater part of two decades and became rector. He was tonsured a monk in 1873, receiving the name Nikodim, ordained priest, and made archimandrite in 1880; from 1886 he spent something under two years reorganizing the seminary at Belgrade before returning to his chair. He worked in Greek, Latin, Slavonic, Russian, German and Italian, and the reach of the present book (which describes with equal confidence the law of the Ecumenical Patriarchate, of the Russian Synod, of the kingdoms of Greece, Serbia and Romania, and of the Habsburg dioceses) depends entirely on that.

On the tenth of July 1890 he was elected Bishop of Dalmatia and Istria; he was consecrated that September and governed the diocese for twenty-one years. The change of office changed the book. A professor writes about diocesan administration from the literature; a diocesan bishop writes about it from the desk. The second edition translated here was prepared by a man who had ordained the clergy, presided in the consistory, conducted the marriage cases, kept the accounts of church property and negotiated with a government that was not of his communion—and who could therefore write about all of it from experience.

At the end of 1911 he was pressed into resigning his see, after a financial scandal in the diocesan administration in which he had no part. He retired to Dubrovnik and worked on. He died there on the second of April 1915, and in 1930 his remains were brought to Šibenik, where he had been born. He left a bibliography of more than a hundred and eighty items, and the judgment of the discipline is that he founded canon-law scholarship among the Serbs and stood among the first Orthodox canonists of the nineteenth century anywhere. His own diocese glorified him locally in 2012; in May 2025 the Holy Assembly of Bishops of the Serbian Orthodox Church numbered him among the saints as a confessor, and he is commemorated on the fourth of October.

The Work: Occasion & Purpose

Orthodox Church Law first appeared in 1890, the year of Milaš’s consecration. The book translated here is the second edition, revised and considerably enlarged, published at Mostar in 1902 by the house of Pacher and Kisić. It is the mature version, and the one that travelled: the same firm brought out an authorized German translation of it in 1905, made by A. R. von Pessić while Milaš was living and named as its author, and it was through that German edition that the Orthodox law of the East became accessible to Western scholarship.

The need it met was one that the canonical commentaries could not. A collection of canons, however well annotated, is arranged by council and by century; it answers the question what does this rule say. It does not answer the question a bishop, a consistory clerk or a working priest actually has, which is: what is the law on the election of a bishop, on the endowment of a parish, on the impediments to marriage, on the trial of a cleric (taking everything together, ancient and modern, canonical and civil, and stating what governs the case now. That question requires a system, and building one for the Orthodox East was a formidable undertaking. The Latin West had possessed a codified body of canon law and a mature science built upon it for centuries. The Orthodox churches had the canons, the Byzantine imperial legislation, the nomocanons, the decisions of patriarchal synods, and, in the nineteenth century, an increasingly thick layer of modern state law) Austrian, Russian, Ottoman, Greek, Serbian, Romanian—under which each of those churches actually lived. No one had brought all of it into one coherent order.

That is what this book does, in two hundred and twenty-eight numbered sections. Milaš writes for the clergy of a church dispersed across four or five states and as many legal systems, and he never lets his reader forget which of those states he is in. Sections that begin with the practice of the fourth century end with the statute in force in the Austrian lands, the regulations of the Russian Holy Synod, or the constitution of the Church of Greece. The result is at once a work of historical scholarship and a working manual, and the join between the two is the book’s distinctive achievement.

Argument & Structure

The treatise is built in five parts, preceded by a short introduction.

The introduction (sections 1 to 9) defines the field: what the Church is when regarded as a subject of law, what church law is and how it stands within the general system of law, how the science of it is to be pursued, what auxiliary disciplines it requires, and what has been written on it. Section 9, a survey of the literature of Orthodox church law, is a bibliographical essay in itself.

Part One, the sources and collections (10 to 46), is the foundation on which everything after it rests, and it is the part in which Milaš the specialist is most on his own ground. He distinguishes the sources from which church law arises (Scripture, tradition, the legislation of the Church, custom, the civil laws, the writings of the canonists) and then works through the formal sources one by one: the canons, the decrees of the patriarchal synods, the opinions of the recognized canonists, the ecclesiastical-civil laws. He treats the interpretation of law and the ways a law ceases to bind. Then he surveys, church by church, the law actually in force in his own day: the Patriarchate of Constantinople, the Russian empire, the metropolitanate of Karlovci, the kingdom of Greece, Sibiu, the Bulgarian exarchate, Bukovina and Dalmatia, Serbia, Romania. And he closes with the collections themselves: the compilations bearing the apostles’ names, the purely canonical collections, the church-civil collections, the nomocanons, and then the Greek, Slavonic and Romanian canonical books and the printed editions of them all.

Part Two, the constitution of the Church (47 to 129), is the longest. It asks what the Church is composed of and how it is ordered. The opening sections treat the concept and foundation of the Church, its head, its properties, its unity, the relation of clergy and laity, and the nature, origin, permanence and branches of ecclesiastical authority. From there Milaš builds the hierarchy upward: the sacred and the administrative hierarchy, the conditions and qualities required of candidates for the priesthood, tonsure, ordination, the right to ordain and the effects of ordaining. Then the organs of authority: the Ecumenical Council, its convocation, membership and authority; the regional churches and their autonomy; the autocephalous churches ancient and modern; the metropolitan and patriarchal synods; metropolitans, patriarchs and their vicars. Then the bishop: how he was chosen in antiquity and how he is chosen now, his oath, his consecration and its effects, his rights and duties, his relations with his brother bishops, and the administration of a widowed see. Then the machinery of a diocese: consistories, diocesan assemblies, protopresbyters and priestly conferences. And finally the parish: the appointment of parish priests, their rights and duties, their assistants, deacons and church-servers, parish committees, and the clergy attached to the army.

Part Three, the administration of the Church (130 to 167), takes up the three functions that authority exists to exercise. The teaching office comes first: the preservation and spread of Christian doctrine, and the protection of the faithful from false teaching. Then the sanctifying office: the sacred acts of the Church, who may perform them, and the general rules governing them. Then the governing office, treated at length—general and particular church legislation, provincial councils, the legislative power of a bishop, the statutes of brotherhoods; then the judicial power, with the changing competence of the church courts, the courts themselves, judicial procedure ancient and modern, the classification of ecclesiastical offences, offences proper to the clergy, and the penalties, distinguished for laity and for clergy, together with the rules for imposing them. The part closes with a full treatment of church property: the Church’s right to own, the subject of that ownership, acquisition, privileges, administration, use, the founder’s right, and the support of bishops, of the parish clergy and of the infirm.

Part Four, the life of the Church (168 to 219), follows the Christian from entry into the Church to burial. Baptism and the reception of converts from other confessions come first, then the sacred rites, persons, places, things and times. The largest block in the part, and one of the most consulted in the book, is on marriage: its concept, its character as a sacrament, matrimonial jurisdiction, the conditions of a valid marriage, betrothal, the prenuptial examination, the banns, the permitted times, the wedding itself; then the impediments, absolute and conditional, with the degrees of kinship, affinity, spiritual kinship, half-affinity and adoption set out in full, the non-kinship impediments, their consequences and their dispensation; then the rights and duties of spouses, the relation of parents and children, the grounds and consequences of divorce, second and third marriages, and mixed marriages. There follows monasticism (its significance and origin, its regulation and forms, entry, tonsure and its consequences, the monastery and its internal order) then the church brotherhoods, and finally the last communion, the burial of the dead and prayer for them.

Part Five, the Church and the State (220 to 228), closes the book with the question it began from. Milaš treats the origin of both authorities, their mutual independence, the fundamental relation between them, the proper spheres of each, and the church-state arrangements actually obtaining in his own time; then the Church’s relation to other confessions, and the distinction between religious toleration and the toleration granted by a state. These nine sections are the shortest part of the treatise and, given the circumstances of the author’s life, the most keenly felt.

Theological & Spiritual Significance

A treatise on church law may look like the least theological of books. In fact the whole of Milaš’s argument stands on a theological claim, made in his opening pages and never abandoned: the Church is a divine institution which, because its members are human beings living in society, necessarily takes on a legal form, and the law it develops is the shape that spiritual body takes when it lives in history. Everything follows from that. Church law is not modelled on state law and does not derive its force from the state’s recognition; it arises from the Church’s own constitution, given by its Founder, and it exists for the end the Church exists for.

The most substantial theological work in the book is done in Part Two, where Milaš derives the whole hierarchical order from the equality of the apostles and the transmission of their authority to a college of successors rather than to individuals. The Orthodox account of primacy, of conciliarity, and of the autocephaly of local churches (several churches, fully equal, each governing itself, together constituting one Church) is worked out here at length and from the sources, and it is one of the fullest statements of that position available anywhere. The section on the head of the Church, and those on the authority of an Ecumenical Council and on the significance of concordant episcopal decisions taken without a council, engage directly the questions on which East and West have long differed. Milaš states his church’s position plainly and argues it from canons and history rather than from invective, and reports the Western canonists honestly enough that a reader who disagrees with him can still use his book.

The second thing the treatise gives the reader is a picture, unavailable elsewhere in such compass, of Orthodox church life as it actually stood at the turn of the twentieth century. The book was written in a world about to end. Within twenty years of its second edition the Russian synodal system had been swept away, the Ottoman and Habsburg empires had ceased to exist, and half the arrangements Milaš so carefully describes were gone. What survives is a precise account of how the ancient canons were being applied, adjusted and contested under half a dozen modern governments—and, alongside it, the underlying principles, which did not change when the governments did. Read now, the closing part on Church and State has an interest its author cannot have intended: it is the settled judgment of a bishop who spent his life defending the independence of a church inside a state that regarded it with suspicion, and who was in the end removed from his see by that state’s pressure.

Reception & Influence

This is the book on which Milaš’s international reputation rests. Within seven years of the first edition it was available in Russian, and the second edition was published in German in 1905 by his own publishing house in a translation he authorized; his writings also passed into Bulgarian, Romanian, Greek and Italian. For Serbian church law it has never been displaced as the classic systematic treatment, and for the wider Orthodox world it long served as the standard modern statement of the discipline—the book to which canonists of other churches turned for an account of the whole field. Its influence is visible in the shape of the Orthodox canon-law handbooks that followed it: the division of the material, the placing of the sources first, and the habit of carrying every question down to the law actually in force are all his.

The Text & This Edition

Milaš’s treatise has been read in Russian since 1897 and in German since 1905, and by Bulgarian, Romanian, Greek and Italian readers besides; this edition brings it into English, more than a century after his death. The translation is made from the Serbian second edition: Православно црквено право, “second corrected and enlarged edition,” Mostar, Pacher and Kisić, 1902.

The edition is English only and complete in itself; it is not laid out as a parallel or bilingual text. Milaš’s numbered sections are preserved as he numbered them, and his footnotes (a dense apparatus of Greek, Latin, German and Russian scholarship, and one of the most valuable things in the book) are carried over rather than pruned. Following the conventions of this series, the author is named as the Church receives him, with his title of sanctity recorded in its own field and not folded into his name, and those who have brought his words into English are credited as translators, never as authors.

Section 169 and a few shorter passages (in §§ 13–14, 145–146, 161–162, 168, 170, 173–174, 180 and 192–193) do not survive in the copy of the printed edition used here, and each break is marked where it falls.

Suggestions for Reading

This is a reference work, and it is best used as one. The numbered sections are short, self-contained and cross-referring, and almost any of them can be read on its own.

A reader who wants to understand what Milaš is doing should read the introduction, sections 1 to 9, straight through, they are compact and they set out the whole programme, and then jump to Part Five, sections 220 to 228, on the Church and the State. Those two short stretches, taken together, frame everything in between.

After that, follow your question. A reader interested in how the Orthodox churches are constituted should go to the sections on autocephaly, the councils and the patriarchs in Part Two; one interested in how a bishop is made, to the sections on election and consecration; one interested in the ordinary machinery of church life, to the diocesan and parish sections that close that part. The treatment of marriage in Part Four is the fullest thing of its kind in the book and is probably its most immediately useful stretch for the general reader, as the sections on ecclesiastical courts, offences and penalties in Part Three are for the historian. Those coming from the Western canonical tradition may find Part One the most instructive of all: the account of the sources (canons, imperial law, custom, patriarchal decisions, the nomocanons and the Slavonic and Greek canonical books) describes a body of law that developed on very different principles from the codified law of the West, and it explains a great deal about the Orthodox churches that is otherwise puzzling.

Finally, this treatise is the natural companion to Milaš’s two volumes of commentary on the canons. The commentary tells you what a given rule says and how it has been read; the treatise tells you where that rule sits in the whole structure and what governs the case now. Used together, they are what their author intended: a complete working library of Orthodox church law, by one hand.