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376 Pages
Acknowledgments
The editors are particularly pleased to present this volume of the History of Medieval Canon Law because no other book in any language covers the rich history of canon law in Eastern Christianity. As will become clear to the reader, from the perspective of the contemporary world canon law in the East presents linguistic difficulties and ironies. The difficulties are the number of non-Western languages that are necessary to explore the field, in addition of course, to the mother language of canon law, Greek. The irony that will strike today’s readers is the fact that many basic texts of Eastern canon law are preserved in languages other than Greek: Arabic, Syriac, Coptic, Armenian and others. We only know a number of texts in their Arabic guise.
As will be clear from the notes, this volume owes many debts to previous scholars and their scholarship. It will also be clear that this particular volume reflects the long tradition of Greek and German scholars’ interest in Eastern canon law. Today that tradition is still alive and well at the Max-Planck Institut fiir Europaische Rechtsgeschichte in Frankfurt am Main. The European authors of this volume all benefitted from sojourns in Frankfurt.
This volume, like the others, is an international effort and has had international support. The now defunct Werner Reimers Stiftung in Bad Homburg, Germany supported this project in the early 1990s. The National Endowment for the Humanities, the Gerda Henkel Stiftung, and the Alexander von Humboldt Stiftung gave generous support over the past twenty years. The editors’ universities, Syracuse University, The Catholic University of America, and the Universitat Tiibingen, provided crucial financial and scholarly support as well. The bulk of this volume was originally
written in German and Greek. The editors are grateful to the translators who helped turn these chapters into English. Steven Rowan (University of Missouri, St. Louis) translated the chapters of Heinz Ohme and Hubert Kaufhold. The editors revised Rowan’s translation with the help of Ohme and Kaufhold. Father Panayiotis Papageorgiou (Famagusta, Cyprus) translated the Troianos chapters. Ruth Macrides (then Edinburgh and now Birmingham), John Erickson (emeritus St. Vladimir’s Orthodox Theological Seminary), and David Wagschal (St. Vladimir's) reviewed the translation and made suggestions for bibliographical additions. The editors revised and reworked the English translations. They are completely responsible for the final form—and infelicities—of these chapters. They must also thank Martina Hartmann for contributing her expertise to this volume.
Some editorial decisions for this volume were difficult. The most basic question was which system of transliteration should be used for proper names for a volume with so many different languages. For the most part we have tried to follow standard English usage in the scholarly literature. However, we have not imposed uniformity, and we have respected the wishes of our authors.
Wilfried Hartmann and Kenneth Pennington Munich and Washington, D.C., 2010
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 pro-gression 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 receiveda 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 fulfilment? 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 GrecoRoman 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 Didaché.* 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’);” the second (6.315) 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 Didaché with its self-conscious insistence upon its apostolic roots was a series of letters composed in the late first and early sec-ond 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 Didaché 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 leader ship 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 Didaché, 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 Didaché, 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 wellarticulated 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 orga- nization 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.
The Epistle of Barnabas is an important source of ecclesiastical law for its self-conscious incorporation of Jewish ritual observances and moral commandments into the Christian context.* There is no sense here of a church organization, incipient or otherwise. Although its date and authorship are uncertain, the letter (which is not in fact a letter at all) was most likely written during the middle of the second century by an anonymous man from Alexandria whom later theologians (including Clement of Alexandria) identified improbably as the apostle Barnabas. With the Didache, the text shares the common source of the Two Ways, understood here as the way of light and the way of darkness, into which are integrated a series of behavioral norms and moral pronouncements (18-21). Juxtaposed to this common source stands the main portion of the tractate, in which the author’s purpose to communicate perfect gnosis is explored through his allegorical interpretation of the Hebrew Scriptures (1). In place of the old law practiced there stands the new law of Christ in which such ritual observances as sacrifice, fasting, circumcision, dietary restrictions, purity laws, Temple, and the sabbath are not, as the author claims, abolished, but rather reinterpreted allegorically as spiritual pronouncements that govern moral conduct. To follow these pronouncements, which are integrated thoroughly into an apocalyptic eschatology, is to acquiesce in the way of light and to partake in the kingdom.
Moral conduct and behavioral norms are similarly culled from the Jewish tradition and reinterpreted as part of a larger apocalyptic theology in the tractate known as the Shepherd of Hermas.” Composed no later than the middle of the second century,” the work presents itself in three sections, a series of visions, commandments, and similitudes which were the revelations that a man named Hermas (who is otherwise unknown) received in Rome and its environs from two heavenly figures. It was counted among the books of Scripture by Irenaeus, and by Clement and Origen as a work divinely inspired, and was read widely as a book of personal devotion in the East well into the fourth century. A controversy about the status of those who sinned after baptism is the larger ecclesiastical setting in which the work appeared, the purpose of which was to assure Christians that one more chance for repentance was possible for those who subscribed to the set of moral guidelines and behavioral practices delineated in the tractate.
Hermas received the twelve commandments from the angel of repentance who appeared in the form of a shepherd. The commandments were drawn mainly from hellenistic Jewish ethical teachings, which were also the norms the Christians were expected to follow. They included pronouncements on the unity of God, on lying, slander, almsgiving, care for the poor and the dispossessed, adultery, patience, gluttony, extravagance, and the necessity for continual prayer. Although a developed church organization consisting of apostles, bishops, teachers, and deacons is assumed, the legitimacy of these commandments, and the authority for their being carried out, resides not in the hierarchy but in the broader eschatological context that frames them (1.3.5). That the church tower under construction (according to the vision described in the third section) was delayed briefly in order to accommodate those who wished to repent illustrates not only that the view of repentance was universal, but that the moral pronouncements depended for their legitimacy upon the sense of urgency that an eschatological vision of the world inspired (3.9.14; 3:10.4). Because of this urgency, however, the sort of church imagined here is a community of individuals bound together primarily by a code of moral conduct and by a set of behavioral and devotional norms. Assenting to them sincerely was thought to secure each person his membership in an eschatological community that was imminent.”
The church order known in its Syriac version as “The Didascalia, that is catholic doctrine, of the Apostles and Holy Disciples of our Savior’, was composed originally in Greek sometime in the middle of the third century, probably in Syria, by a sect of Jewish Christians.* Like the Didaché, the text, through its title and internal references, claimed that its authority derived from the apostles, with whom the anonymous author explicitly identified himself in order to address the divergent practices that had arisen in the community with respect to the Jewish law (24.6.12). Some of its members had been observing certain ritual practices of holiness, such as abstaining from wine and meats, maintaining the ritual laws of purity, and generally submitting themselves to the legal prescriptions of the Old Testament.
Like the letter to the Galatians and the Letter of Barnabas, therefore, the Didascalia was deeply immersed in sorting out the relationship between the law that was no longer relevant because it had been fulfilled in Christ and the law that continued to shape the life of the community. How Paul and Barnabas resolved the tension has already been considered. The Didascalia resolved it by making explicit the distinction between moral and ritual law that merely simmered beneath the surface in the letters of Paul. Here the moral law, or the law that continued, was not only the command to love, but the entire Decalogue, the ten commandments that Moses revealed to the people before they reverted to idolatry, as well as the judgments that followed. This was identified as the simple law, the law of life that was free from the burdens imposed upon the people by the more detailed prescriptions of ritual observance, such as those pertaining to meats, incense, sacrifice and burnt offerings, and the laws of purity. It was to the second, provisional legislation that these complicated regulations belonged, the main function of which was to punish the people’s apostasy. Only the legal prescriptions of this second legislation, to which some members of the community continued to subscribe, had been fulfilled and, therefore, abolished with the advent of Christ.
Because of its negative view of this second legislation, there is no interest here in the allegorizing of ritual found in Barnabas, for instance, where a special gnosis imparted to Christians the interpretive key to unlock the spiritual meaning that had eluded the Jews. Through his use of allegory Barnabas did not wholly reject the law, but rather incorporated it, transformed though it was, into a Christian framework. For such authors, there was no question that the Old Testament law applied, but that its meaning was deciphered only by Christians, who were endowed with the special capacity to understand. While Barnabas integrated the allegorical interpretation of Scripture into his broader apocalyptic theology,” there is no sense in the Didascalia that the end was imminent and no attempt to incorporate its interpretation of the law into a moral eschatology. That men and women were never to regard each other as unclean, that no amount of ritual washing was ever to absolve a man who had committed adultery, were among the quasi-moral pronouncements that the Didascalia made, through its rejection of ritual law, in order to promote a well-ordered community life (26.62). Moral conduct, in other words, was prescribed in the context of relationships, the relationship between the hierarchy and the laity, between members of the community, between husband and wife, between the living and the dead.
The commitment to facilitating relationships, which infuses nearly every aspect of the text, accounts for its detailed pronouncements regulating the functions attributed to, as well as the conduct expected from, the various church officials. This was a well-defined hierarchy of bishops, deacons, deaconesses, presbyters, subdeacons, lectors, and widows (the functions of each of which cannot be elaborated here).’® Of the many qualities that the bishop was expected to cultivate (to single out the office to which a large portion of the text is dedicated), including frugality, temperance, sobriety, purity, generosity, abstemiousness, patience, and diligence, as well as a studied indifference to the requests that were frequently made by the wealthy, perhaps the most important virtues he was to possess, under which nearly all of his other personal attributes could be subsumed, were the twin virtues of justice and mercy. Bishops were never to implement justice in a way that neglected the principle of compassion (6.12). Practically speaking, this meant that penitential discipline for the community was generally lax, for bishops were urged to emulate several Old Testament examples by readmitting to communion even those found guilty of idolatry, adultery, and murder.*' The deeper principles operating here were that form was never to dictate substance; that an overly rigorous observance of the rules was never to outweigh fairness; and that no one was ever so circumscribed by her place in society that she was beyond the reach of justice. A woman, for instance, who was not a widow was, nonetheless, qualified to receive financial assistance should the bishop determine that her need was greater than that of a widow whose status might otherwise have guaranteed her alms (4.10).
The function of the bishop in such instances (and the examples could be multiplied) was to act as the arbiter of justice according to the divine model that was God. In the manner of Ignatius (whose letters the author most certainly read) the ecclesiastical hierarchy was to be honored according to the place that each of its members mirrored in the celestial sphere, the bishop representing God, the deacons Christ, the deaconesses the Holy Spirit, the presbyters the apostles, and the orphans and widows the likeness of the holy altar (9.25). For the Didascalia, as it was for Ignatius, this relationship to the heavenly archetypes was the foundation for the authority of the church hierarchy, the basis for its demand of uncompromising obedience from the people. Unlike Ignatius, however, it also signaled to the bishop the gravity of the role he was expected to play. Modeled on the justice and mercy of God, the bishop was responsible for ferreting out and assessing every aspect of the complexity of human relationships that might have some bearing upon his implementing justice. This presumed, of course, that the bishop was alert to all of the nuances of human interaction that were the reality of community life. In court cases, for instance, he was to determine whether the accuser brought his charges out of envy or retaliation, whether the accused had in the past committed similar crimes, and generally to observe the behavior of each party as he existed in the world (11.28). Because the bishop was also charged with distinguishing the norms contained in the Decalogue from the second legislation, the same web of human relationships that were the object of his scrutiny shaped his understanding of the limits of the moral law (4.10). There is no better example of how behavioral norms and moral conduct were not imposed as an abstract set of legal principles, but rather developed in the context of human relationships and according to the vicissitudes of community life.
Although the Didascalia infused nearly every aspect of its church or-ganization with the divine model of justice and mercy, it contained virtually nothing of the rules for the election and ordination of church officials, nor any of the finer points of sacramental ritual.” The reverse was true for the Apostolic Tradition of Hippolytus, a church order composed sometime during the third to fourth centuries, that set out to record the ‘traditions of the apostles’ in order to oppose what its author perceived to be the incorrect practices endorsed by his opponents with a renewed commitment to tradition and rigorism.”’ Important both as a witness to the early traditions of the church and for its continuing influence in the East, where it served as a model for a number of later works,* the Apostolic Tradition was a studied attempt to respond to the ‘lapse or error that was recently invented out of ignorance’ by recording the orthodox rituals and practices that the author had received from the presbyters.*” Because the author was vociferously opposed to innovation, the church order he produced is at once a reliable repository for the tradition that had been accepted into orthodox practice by the church and an argument for its continued observance. Legislation regulating the election and consecration of the hierarchy; the conversion, instruction, and baptism of the laity; and the various church rituals, including the eucharist, agape, and fast, constitute the major portion of the manual. In marked contrast to the Didascalia, there is no mention of the personal qualifications that were required of those who held church office. This might seem like a surprising omission for an ecclesiastical manual that was deeply committed to promoting rigorism, except that adherence to correct procedure has replaced moral purity as the basis for the legitimacy of the hierarchy. That is because the procedure by which the bishop was consecrated, the laying on of hands by the bishops which infused him with the Holy Spirit, made him a worthy successor to the apostles, who in turn were the successors of Christ and the ‘righteous race of Abraham’ (1.2.3; 1.3.1-2). His qualifications upon entering the ministry were not emphasized in the manual because it was the act of consecration itself that transformed him into that worthy successor.
The model of church organization adopted here is probably best understood in relation to the letters of Ignatius, where the celestial order consisting of God, the apostolic council, and the ministry of Jesus corresponded to each member of the ecclesiastical hierarchy. As a representative of that ministry, the bishop, according to the author, functioned as a high priest, whose authority to remit sins, to make consecrations, to preside over the sacraments, and to administer justice differentiated his powers from those exercised by his subordinates, the presbyters, deacons, confessors, widows, readers, virgins, subdeacons, and healers (1.3.4-5).*° Their places in the hierarchy and their exercise of power was expressed and circumscribed by the ritual of initiation that was appropriate to their particular office. Unlike the bishops who were chosen by the people, for instance, the deacons were selected by the bishop alone to serve only him (1.9.1-2). To limit their function, they were not ordained into the priesthood, they did not receive the spirit (as the presbyters did), and only the bishop laid his hands upon them (1.9.2-4).”” Lower in the hierarchy were the widows and readers, who were appointed rather than ordained, and after them the virgins and healers, who were merely recognized, but not appointed, according to their purpose and effectiveness respectively.
A rigorous examination of personal character was undertaken before admitting converts into the church. In the sections regulating the laity, for instance, the marital intentions and professions of hearers (or first-stage catechumens) were carefully prescribed. Many professions, such as mili-tary commanders or civic magistrates, were rejected altogether, while others, such as sculptors, were permitted to continue their profession if they agreed to abide by certain restrictions, such as refusing to make idols. The moral qualifications, which were omitted in the section pertaining to the clergy, were made the object of close scrutiny for catechumens in their second stage (‘those set apart for baptism’): they were expected to live sober lives, to honor widows, visit the sick, and generally to perform good deeds (2.20.1-2). Once their moral purity was ensured, catechumens were invited to participate in the sacrament of baptism.
For its detailed description of the rituals prior to and during baptism, and for its preservation of the creed that the catechumens recited, this church order is an important witness to the early liturgy. From it we learn that catechumens were asked three questions pertaining to their belief in the Father, Son, and Holy Spirit, after each of which they responded in the affirmative, and then were submerged in the baptismal water by the presbyter, and attended by the deacons (2.21). Also noteworthy is its description of the baptismal eucharist, in which the bishop, through a prayer of thanksgiving, made the bread into an image of the body of Christ, and the wine into a likeness of his blood (2.23.1). New Christians were then given milk and honey, which functioned as a type of the nourishing flesh of Christ and as the fulfillment of the scriptural promise that those who entered the land of Israel would be similarly nourished (2.23.2).** The additional descriptions of church rites and practices, such as laws regulating burial, the offering of meals to widows, and the conduct appropriate at an agape, cannot be considered here. Together the regulations suggest, however, that adherence to the rites and forms of church worship that were the traditions inherited from the apostles, as well as reciting the appropriate creed, would prevent Christians from falling into heresy (3.38).
With its confidence in the effectiveness and legitimacy of the rituals and procedures that the author claimed to have inherited from the apostles, the Apostolic Tradition differs considerably from its precursor and closest model, the Didaché, for which the larger moral and eschatological implications of the Two Ways imposed the looming sense of obligation upon its community.” The authority for such rites and procedures was now made to reside not in the broader context of an implicit moral eschatology, but rather in the continuing commitment to the tradition of the apostles and to earlier church practice. This was an important step in recognizing the ongoing legislation of the church as legitimate. With the Apostolic Tradition, therefore, the eschatological threat of judgment for those who did not adhere to the rites of worship, forms of church organization, and norms of behavior contained in the Shepherd of Hermas, the Epistle of Barnabas, or implicitly in the Didaché, receded into the background as a more self-referential conception of the ecclesiastical law emerged.
The church councils of this early period were an extension of this way of understanding the formation and legitimacy of ecclesiastical law.“° Unlike the pastoral epistles or the church orders, however, these early councils were not the expression of a particular community’s internal regulation. They were rather the product of the collective deliberation of those who understood themselves to be a part of the church hierarchy and to be invested with the authority to speak on behalf of that hierarchy. When competing theologies emerged, such as gnosticism, Montanism, or the Sabellianism or subordinationism of Paul of Samosata, we know from the church historian Eusebius, for instance, that councils were held in the East as early as the second century to determine the boundaries of orthodoxy.*! There is little doubt that these early councils were conceived on the model of the Jerusalem synod which the apostles held in ca. A.D. 50-52 in order to consider whether Christians were obligated to practice the ritual of circumcision as the Mosaic law required of the Jews (Acts 15; Gal 2:1-2). Although this association with the apostolic synod was never made explicit, the conviction that a council’s decision-making power, like that of its model, had been infused with the Holy Spirit gave these deliberative bodies the legitimacy that the early church orders had struggled to obtain.
Although most of the eastern councils prior to Nicaea are known to us only secondhand, through the brief descriptions given them by the theologians and church historians of the period, the canons of two eastern councils, the Council of Ancyra in A.D. 314 and the Council of Neocaesarea in ca. A.D. 318, have been preserved in their entirety in a canon collection that was compiled prior to the Council of Chalcedon.” One of the first, and certainly one of the most important, councils to be held after the persecution of the Christians ceased, once and for all, with the death of Maximinus in A.D. 313 was the Council of Ancyra.” According to the three lists of bishops that have come down to us, which differ considerably in the names of bishops recorded and in the provinces that they represented, somewhere between twelve and eighteen bishops were present from the various regions of Syria and Asia Minor.“ Their purpose was to address the variety of disciplinary problems raised by those who faltered, either willingly or by force, during the persecutions, as well as to pass legislation pertaining to celibacy, marriage, adultery, and bestiality; sorcery and divinization; the sale of church property; the authority granted to the chorepiscopi; the kidnapping of virgins, and voluntary and involuntary homicide. Nearly all of these rules are united in their attempt to impose a set of punitive measures that were clearly defined and rigorous, without being exclusionary, and that applied broadly to the regions of Syria and Asia Minor that the members of the council represented. What separates this conciliar legislation from the earlier church orders is the way in which its disciplinary rules functioned not only to differentiate the degree of moral responsibility according to a set of legal principles that were easily identified and readily repeated, but also to establish in detail the conditions under which those who faltered were readmitted to community life.
The most uncompromising rules were, not surprisingly, those applied to the priests and deacons who had offered sacrifice during the persecutions: afterwards they were permitted to retain the dignity of their office, but not to perform the religious functions, no matter how sincerely they had repented (canons 1-2). Here was one of the few exceptions to a set of disciplinary measures that was, for the most part, determined to unearth the circumstances under which an ecclesiastical offense was committed in order to discern the state of mind of the penitent. The severity of the discipline was then made to correspond to the degree of moral culpabil-ity. Canons 4 and 5, for instance, distinguished between those who were forced to sacrifice and then afterwards attended the meal offered to idols cheerfully, dressed in their best apparel, and those who attended while dressed in mourning attire, weeping, and generally miserable throughout the festivities.
The former were to be admitted to full communion with the church only after serving for one year as a hearer (second class penitent), three years as a prostrator (third class penitent), and two years as a participant in the prayers (fourth class penitent). The latter, whose somber demeanor made their unwillingness to sacrifice apparent, were not subject to the second class of penitence, while those who did not eat at the meal were to be received in full communion in the fourth year, having served as prostrators for two years and been admitted to the service ‘without oblation’ in the third.” Repeat offenders, namely those who had sacrificed two or three times under force, were not admitted to full communion until the seventh year. The level of specificity contained in the rules reflects this council’s commitment to understand acts of apostasy according to points along a continuum that differentiated precisely the degree of moral responsibility.
A somewhat different way of assessing mental state is apparent in the legislation pertaining to murder. Those found guilty of voluntary homicide were to be admitted to communion only at the end of life, while those who committed involuntary homicide were to be admitted, as might be expected, after serving the shorter penance of five years (canons 22-23). Prostitutes, however, who committed the crime of abortion were to remain penitents for ten years (canon 21), presumably because the death of the fetus was the result of an act of fornication that was, in and of itself, thought to be morally repugnant. (The disciplinary measures taken against married women who received abortions were not addressed by this council.) That the period of penance allotted to those found guilty of the crimes of involuntary homicide and abortion was shortened considerably with respect to earlier legislation—from seven years to five and from an eternity to ten years respectively—is a mark of the way in which this council saw its work: penitents were readmitted to full communion so far as the limits of mercy permitted.*°
It is worth remarking that the only circumstances under which excom-munication was contemplated was the not infrequent case of the bishop who, having been rejected by the people and driven from his see, entered another diocese and raised a sedition against its bishop. Punishment, however, was not administered against such bishops who quietly rejoined the same congregation where they had once served as a priest, and in which they were permitted to retain the dignity of that former office (canon 18). This canon illustrates that the mere existence of a conciliar body invested with the authority to issue disciplinary measures presupposes a well-articulated ecclesiastical hierarchy, the smooth functioning of which was essential to the enforcement of its decrees. While the general ethos was to readmit penitent sinners, those bishops whose seditious actions implicitly undermined the very system that enabled such penitents to be forgiven were themselves to suffer the extreme punishment of permanent excommunication. According to the Paris edition of the great Byzantine monk and scholiast John Zonaras, the Council of Neocaesarea in Cappadocia was held after the Council of Ancyra and before that of Nicaea. The absence of any canons pertaining to the lapsed further suggests that this council took place several years after Ancyra, when the lapsed had already received their sentence and the matter was no longer pertinent.” With nine of the fifteen canons bearing upon sexual behavior, at issue rather was the morality of the clergy and laity.” Priests, for instance, who married after ordination were to be deposed from the priesthood, while those found guilty of fornication or adultery were made to pass through all the stages of penitence before being readmitted to communion (canon 1). A layman whose wife committed adultery was prohibited from entering the priesthood, while a priest under the same circumstance was forced to leave his wife or be deprived of his sacerdotal functions (canon 8). Together these canons seem morally inconsistent because they allow for the possibility that an innocent priest of an adulteress wife might receive greater punishment than a priest who was himself found guilty of adultery or fornication. Their deeper purpose, however, was to evaluate the state of mind of the penitent, as it was explored by the Council of Ancyra several years earlier, whose commitment to the intimate bond of marriage presumed that the sinful actions of the wife brought dishonor upon the husband.” Because living with an adulterous wife was a continous and complacent transgression, the act suggested that the priest who was her husband implicitly condoned her iniquitous deed. His moral culpability was for that reason judged greater than that of the sinful priest who repented of his single act of adultery or fornication.
The remaining canons clarified the baptism of the sick and of married women; circumscribed the responsibilities of the country priests and chorepiscopi; established the age of ordination into the priesthood at thirty; and limited the number of deacons per local church to seven (canons 6, 1-15). The canons pertaining to the age of ordination (canon 11) and to the number of deacons (canon 15) derived their authority explicitly from Scripture: Jesus did not begin his ministry until the age of thirty, and the Acts of the Apostles specified only seven deacons. Even in the sophisticated ecclesiastical legislation that was the province of the councils, therefore, analogies to Scripture were the foundation for canon law. That is because council members were no less committed to the idea that the new canons and decrees that were the business of conciliar legislation were intrinsically connected to the apostolic past, even though they made that connection more subtly and less self-consciously than did the earlier church orders and letters.
Not until the time of Constantine was any attempt made to gather such conciliar legislation into canon collections. It is perhaps no coincidence that a similar effort emerged simultaneously in the secular sphere with the collections of Imperial Constitutions made by two lawyers, Gregorian and Hermogenes—the former contained the laws from Hadrian to Constantine and the latter produced the supplement.” The existence of such collections implied not merely an antiquarian interest in prior legislation, but a new interest in making that imperial past authoritative in the present. By this process, earlier imperial decrees steadily acquired the force of legitimate law. There is no reason to doubt that lawyers from the time of Constantine onward, equipped with this new repository of imperial legislation, used these collections, as they were meant to be used, as a source of binding legal precedent. The commitment to preserving the past was so deeply rooted in a Christian tradition that viewed innovation as equivalent to heresy that the emergence of canon law collections cannot be understood only according to this model. Because the New Testament itself was seen as an important source of the Christian law, with its reference to Graeco-Roman household codes, its allusions to an emerging church hierarchy, and its scattered references to the remnants of a Jewish law, the very idea that a binding set of legal norms existed was already implicit in the tradition. Paradoxically, that was the case in spite of the fact that the earliest letters of Paul were ambivalent about how the law, specifically the law that was inherited from the Jews, was to function.
The extant sources for the evolution of early canon law, including the church orders and letters discussed above, were an elaboration of the incipient processes of legal formation that were already apparent in the New Testament. Deeply interested in advancing their own legitimacy, these early texts, which were produced by individuals and by communities, established that legitimacy by drawing an explicit connection to the apostolic past, on the one hand, and by placing their legal pronouncements in the context of a moral eschatology, on the other. The prospect of securing a voluntary obedience to the norms of behavior and forms of church organization contained in these texts was grounded in one or the other assumption. To be effective, however, those assumptions required the community to acquiesce to the authority of whatever system of organization was being promoted, whether the highly developed episcopal monarchy of Ignatius, or the charismatic prophets and fledgling bishops of the Didaché.
With the early church councils, both sources of authority receded into the background in favor of a more democratic model of church organization, in which bishops from various regions came together in order to deliberate in common about the forms of church organization and the norms of behavior governing the clergy and laity. According to this way of generating law, no single bishop was authoritative in the way he might have been for the communities represented in the church orders and letters. The existence of councils attended by bishops also implied that the laws being enacted extended at the very least to the regions that were represented there. (By the fourth century, that principle was further reinforced as several local councils, including the two considered here, were recognized more widely because of their inclusion in canon collections.) No longer was morality defined in relationship to the implicit threat of an imminent end, as it was, for instance, in the Shepherd of Hermas or in the letter of Barnabas, but according to the broader social circumstances, as in the Pastoral Epistles. Members of the church hierarchy were expected to exhibit the appropriate personal qualities and norms of behavior in order to ensure their excellence according to the moral standards of the Graeco-Roman world, and to invest them with the moral authority needed to govern the Christian community. Laity were expected to conform to norms of behavior that were regulated by detailed rules of inclusion and exclusion from community life. In both cases the legitimacy of the laws that the clergy and laity were asked to obey rested upon a broader idea of the law itself, an idea that evolved from the notion of tradition as binding, which was deeply rooted in the Christian faith, and from the gradual development of the church organization into a well-elaborated hierarchy. Both developments were significant, because respect for tradition was accepted as fundamental, while the hierarchy gradually came to be seen as the continual embodiment of that tradition, the key, in other words, to its preservation. With the introduction of conciliar gatherings as early as the second century, the presumption of legitimacy no longer depended upon linking the present capacity to articulate moral conduct and forms of church organization to the distant authority of an apostolic past (which was sometimes further connected to a moral eschatology). It depended upon a nuanced conception of the law as normative that was largely selfcontained.
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