Wilfried Hartmann is emeritus professor of the medieval history of canon law at the University of Tübingen. Kenneth Pennington is Kelly-Quinn Professor of Ecclesiastical and Legal History at The Catholic University of America. He is the author of numerous works including Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries and The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition. Hartmann and Pennington are coeditors of the History of Medieval Canon Law series.

The History of Byzantine and Eastern Canon Law to 1500

The Catholic University of America Press

Copyright © 2012 The Catholic University of America Press
All right reserved.
ISBN: 978-0-8132-1679-9

Contents

Acknowledgments…………………………………………………………………………………………………..viiAbbreviations…………………………………………………………………………………………………….ix1. The Formation of Ecclesiastical Law in the Early Church Susan Wessel………………………………………………..12. Sources of the Greek Canon Law to the Quinisext Council (691/2): Councils and Church Fathers Heinz Ohme…………………243. Byzantine Canon Law to 1100 Spyros Troianos………………………………………………………………………1154. Byzantine Canon Law from the Twelfth to the Fifteenth Centuries Spyros Troianos………………………………………1705. Sources of Canon Law in the Eastern Churches Hubert Kaufhold……………………………………………………….215Index of Councils and Synods……………………………………………………………………………………….343General Index…………………………………………………………………………………………………….345

Chapter One

The Formation of Ecclesiastical Law in the Early Church

Susan Wessel

* * *

Understanding the development of ecclesiastical law in the Eastern empire prior to the Council of Nicaea (325) involves several assumptions. First is the conviction that eastern canon law can be profitably differentiated from its counterpart in the West. Especially for this early period, however, there is little material to prevent one from doing precisely that, because nearly all of the extant sources are of an eastern provenance, and even those that were written in the West were composed originally in Greek (the most obvious exception being the early western councils, which shall be omitted from this account). Second, few would quarrel with the fact that a body of ecclesiastical law gradually came into being whose development can be understood and traced as a linear unfolding or even progression of ideas about the formation of institutions, practices, morality, dogma, and discipline. Finally, even fewer would deny that these principles eventually gained legitimacy and came to be accepted by the church as authoritative and, therefore, constitutive of its institutional identity.

The difficulty arises in attempting to understand precisely how this evolving corpus of ecclesiastical law acquired the legitimacy and authority that was the precondition for its later codification, for instance, in the collections of the canons of the ecumenical councils and of papal decretals. Long before their authority was accepted as fundamental, in other words, many of the institutional norms of organization, behavior, and discipline that these compilations of canon law expressed were the object of scrutiny and self-conscious reflection by the early communities that produced them, traces of which are contained in the church orders, letters, and conciliar legislation that remain. Because the formation of church law generally took place among nascent communities that could not assume that their legal pronouncements would be binding, nearly all of the early documents that we have are united by their emphatic determination to promote their own legitimacy.

Given these various assumptions and concerns, there are at least two methods by which the development of ecclesiastical law during this early period might be studied. Following the model of the early canonists and of those who collected papal decretals, the sources might be organized systematically according to the substantive legal topics that they treat. While this approach acknowledges what the later canonists surely believed to be true—that a coherent set of institutional and behavioral norms developed according to a kind of linear progression—it violates the integrity of the early sources by removing the legal material from the only context that might elucidate it. With the exception of two eastern councils, the early documents pertaining to ecclesiastical law were mainly contained in letters and tractates whose purpose was to shape the particular communities to which their principles of church organization and norms of moral conduct and behavior were addressed. Preserving this original context by examining each source individually, therefore, connects the legal material with the interests and concerns of the community that produced it. This method also illuminates the broader questions of legitimacy with which such texts and communities were actively engaged.

The idea that a body of Christian law existed, whose content could be identified and whose authority was binding, was already contemplated by the apostle Paul in his letters to the Romans and Galatians. As a hellenistic Jew he was, of course, well versed in the Jewish tradition, having received a thorough training in its laws and rituals, which he combined with his knowledge of Graeco-Roman culture to shape his reflections about life in a Christian community. Whether the Jewish law should be included in, and how it should be interpreted by, the incipient Christian communities were, however, points of persistent contention. Was it a law of ritual observances to be obeyed literally, as some in Galatia suggested? Or was it, as Paul maintained, a provisional set of legal guidelines to be reinterpreted spiritually as merely foreshadowing the law of Christ that was its abrogation and fulfillment? The content of this law, as Paul saw it, was not the ritual prescriptions of the Old Testament, but rather the summation of the single commandment to love. While he defined this relationship between the Old Covenant and the New in his developing theology of the new community baptized in Christ, he, nonetheless, continued to grapple with more concrete matters of legal observance, including marriage, slavery, lawsuits, morality, and food offered to idols, to name only a few. What is absent from his reflections upon a community whose structures he imagined would end shortly is any attempt to elaborate a model of church organization.

For that we turn rather to 1 Timothy and Titus, the so-called Pastoral Epistles of the late first century A.D. (which were written by the anonymous ‘Pastors’), in which the faint outlines of a discernible hierarchy suggest that ‘the Church was beginning to use the structures of the Greco-Roman household as a model for its own organizational structures’. The episkopos, for example, whose personal qualities both letters described, was not the bishop of the later church hierarchy, but the Christian version of the Graeco-Roman overseer, God’s steward who was responsible for managing His household. To perform that function admirably, he was expected not only to teach correct doctrine, but to embody such hellenistic virtues as hospitality, goodness, and temperance, and to refrain from arrogance, drunkenness, violence, and greed. Deacons (or ‘servers’) were appointed to serve the community only if they too were found to be sober, honest, and free from greed, while women deacons were expected to be serious, temperate, faithful, and without slander. (The slightly different catalogue of virtues and vices probably reflected the different responsibilities that women and men traditionally assumed in the household.) That church officials, such as bishops (‘overseers’), deacons (‘servers’), and presbyters (‘elders’), were made to possess the same qualities as every other upstanding member of the Graeco-Roman world suggests that the church intended to accommodate itself to the broader society. Its embrace of Graeco-Roman moral conventions, in other words, was the foundation not only for its condemnation of the overly rigorous asceticism practiced by the unnamed group of opponents whom the Pastor set out to defeat; it also suffused this developing hierarchy with legitimacy as it began to extend ever so slightly into the wider world.

A similar interest in morality lay at the heart of the oldest church order that we have, the ‘Lord’s Teaching to the Gentiles through the Apostles’, commonly known as the Didachè. While it purports to be an apostolic document, the attribution is merely a fiction designed to lend its moral and regulatory pronouncements the weight of apostolic authority. The false attribution says something, in any event, about the church organization that this document reflects. Although bishops and deacons are mentioned and their personal qualifications for office described (men who are gentle, generous, faithful, and well-tried), the most celebrated leaders were the prophets and teachers that one might expect in a community that defined itself by its relationship to apostolic authority. That bishops and deacons were to be given the same respect as these well-respected prophets and teachers suggests a community whose quasi-charismatic identity, with roots deep in the subapostolic period, sometimes conflicted with its growing need for a more elaborate church organization. This was a community on the verge of developing a hierarchy to which some of its members openly objected.

The date and provenance of the church order cannot be identified precisely, although its allusions to, and quotations from, the Gospels of Matthew and Luke, and the common source it shared with the Epistle of Barnabas, suggest that it was redacted early in the second century. Internal evidence indicates that the work is a compilation of earlier sources from Syria and Alexandria and that its setting was the rural countryside. Two well-defined sections can be discerned in the text: the first (1–6.2) consists of catechetical instructions that the author has organized according to the ‘Two Ways’, the way of life, and the way of death (‘an early Christian adaptation of a Jewish exemplar’);13 the second (6.3–15) consists of the church order proper, a series of regulations and disciplinary measures ordering life in a Christian community. Although scholars have posited a different provenance for each of the two sections (the Two Ways coming from Alexandria and the church order from rural Syria), the text as it has come down to us reflects the integrated design of its final redactor. The moral injunctions drawn from Scripture in the first section were the instructions to be imparted to catechumens during baptism as it was regulated in the second section. Regardless of its use of earlier sources, therefore, the current text has fully integrated a code of moral behavior with instructions about church life. Those instructions were first and foremost of a liturgical nature (7–10): catechumens were to be baptized in running water in the name of the Father, Son, and Holy Spirit; fasts were to take place on Wednesdays and Fridays to distinguish the community from ‘the hypocrites’ (who fast on Mondays and Thursdays); the Lord’s Prayer (Matt 6:9–13) was to be recited in the prescribed manner; and the eucharist was to be understood as a meal of thanksgiving offered to the Lord (though surprisingly no mention is made of the body and blood of Christ). What is striking about these regulations is that they reveal how certain laws came to be recognized as normative for the life of the community. An abstract set of ecclesiastical laws was never imposed upon the incipient communities; rather, liturgical practices that were already recognized as traditional were gradually given the force of normative law.

Related to the Didachè with its self-conscious insistence upon its apostolic roots was a series of letters composed in the late first and early second centuries by church leaders who came to be known in the seventeenth century as the apostolic fathers. Because of their pastoral quality, however, these letters share more in common with the apostolic epistles of the New Testament than they do with the formal church order that the Didachè represents. The letters attest eloquently to the fact that norms of conduct and practice were developed in the context of individual communities that were wrestling each with a particular set of problems. Clement of Rome in his Epistle to the Corinthians (c. A.D. 96/97), for instance, presented a model of church organization that responded directly to the challenges to the existing hierarchy that were raised by a faction within the community. Identified by Irenaeus and Hegesippus as the third successor of St. Peter in Rome, Clement functioned as a kind of bishop-presbyter whose responsibilities extended to the outlying churches (63). That he was assisted in his duties by a representative, who was invested with authority to articulate his judgments, suggests that the claims of papal primacy, which were eventually to receive full expression by Leo the Great in the fifth century, were already being articulated in their most incipient form by Clement at the end of the first century (65). His intervention in the affairs at Corinth came about because a controversy had arisen there over the type of ecclesiastical leadership being exercised. Although the precise reasons for the conflict remain obscure, it seems that a faction of possibly charismatic leaders had removed from the community certain members of the regular church hierarchy (44.6; 47.6). In the time of Clement the hierarchy consisted of a laity that was distinct from the clergy, and a clergy that included among its ranks the bishops and deacons, and which was collectively known as the presbyters. Clement’s contribution was to locate the authority for these hierarchical distinctions within the ministry of the apostles, who, having received their orders from Jesus himself, appointed the first converts to serve as bishops and deacons.

This model of church organization, which foreshadows the doctrine of apostolic succession that Irenaeus was to develop more fully at the end of the second century, was meant to ensure the smooth transition of leadership (42.4). In its current guise, however, the doctrine did not delineate precisely how that transition was to come about. It presupposed a loosely defined bishop-presbyter whose duties were mainly liturgical, and whose election to office was neither the result of a charismatic transfer of leadership that the apostles assumed, nor of the preferences voiced by the clergy and people, as Caelestine and Leo the Great later decreed. There is some indication, however, that bishops and deacons were chosen by a selected group of unspecified leaders and then approved by the whole church (44.3). Like the Didachè, therefore, this document portrays a community on the verge of developing a hierarchical leadership, the authority for which was articulated explicitly as being the direct heir to the charismatic leadership that the apostles exercised. Given this tension between charismatic and elected leadership, it is not surprising that several members of the community objected to the new model of church organization that was gradually unfolding.

A very different conception of ecclesiastical authority emerges from the letters of Ignatius, the bishop of Antioch who was martyred during the reign of Trajan (A.D. 98–117). The doctrine of apostolic succession being nowhere in sight, Ignatius envisioned an elaborated hierarchy whose authority was grounded in the church’s close resemblance to the celestial sphere: the bishop represented God, the presbyters the apostolic council, and the deacons the ministry of Jesus. This well-articulated hierarchy was a departure from the more fluid conceptions of ecclesiastical office that the Pastoral Epistles, the Didachè, and Clement of Rome reflected. Here the bishop was responsible for contracting marriages, for celebrating the Eucharist, and for authorizing baptisms and agape feasts, in all of which he was presumably assisted by his presbyters and deacons, whose obligations were defined according to the place that they mirrored in the cosmos. Perhaps what is most distinctive about this model is that the apostolic council is no longer understood as a part of living memory. Elevated to the status of a heavenly archetype, it has become the celestial paradigm to be imitated rather than the repository of a fluid tradition to be transmitted to future generations.

What this highly differentiated model of church organization may have sacrificed in the continuity of the apostolic tradition, however, it effectively gained in promoting the office of the bishop. This, the first clear statement of an episcopal monarchy, made obedience to the bishop not only the sine qua non of membership in the church, but implicitly of salvation itself. Right conduct, a clear conscience, and freedom from heresy were thought to be possible only for those who submitted fully to the authority of the bishop and to those in his service, the presbyters (and deacons?) who were ‘as closely tied to the bishop as the strings to the harp’. Together the congregation and the clergy were to form a choir, singing of their harmonious love in hymns to Christ and God. The musical metaphor aptly expressed the vision of ecclesiastical and doctrinal unity that this celestial image of the church prescribed, by which each of its members participated in God through their proper relationship with respect to the hierarchy. There was no more unambiguous expression than this of the benefits of a well-articulated and hierarchical model of church leadership.

The episcopal monarchy that Ignatius promoted was absent in the church organization that Polycarp of Smyrna described in his letter to the Philippians (which he appended to the several letters Ignatius had written while traveling to his martyrdom in Rome). That Polycarp knew Ignatius makes it all the more surprising that he continued to subscribe to the more undifferentiated model of the hierarchy, in which a council of presbyters likely governed the church, and no mention was made of a bishop. This was the case even though Polycarp, in addressing the same problem of docetism (7.1) that Ignatius faced in his letter to the Trallians (9–10), might well have reached the similar conclusion, that obedience to the bishop was the equivalent of obedience to Christ. It was, so far as Ignatius was concerned, the only way to avoid heresy. The rather different conception of leadership to which Polycarp subscribed made compassion and righteousness, rather than innate correspondence to the celestial sphere, the defining characteristic for the presbyters and deacons. Presbyters were to care for the sick, widows, orphans, and poor, while avoiding anger, partiality, greed, and injustice (6.1). Deacons were to be blameless, temperate, and careful, while refraining from greed and slander (5.2). Although the organization here is only partially developed, the move away from charismatic authority is complete. The presbyters and deacons were not the individual recipients of an apostolic tradition any more than their office alone entitled them to reflect a place in the cosmos. Their rigorous moralism was rather the visible expression of an eschatological world view in which the threat of the coming judgment was ‘the motivation for pious living’. As men who were chosen for service, they were also expected to embody all of the practical qualities and personal virtues needed to administer the churches.

(Continues…)

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