Download PDF | (Birmingham Byzantine and Ottoman Monographs, 8) Clarence Gallagher - Church Law in Rome and Byzantium_ A Comparative Approach-Routledge (2019).
294 Pages
Birmingham Byzantine and Ottoman Monographs About the series Birmingham Byzantine and Ottoman Monographs is a series of studies devoted to all aspects of the history, culture and archaeology of the Byzantine and Ottoman worlds of the East Mediterranean region from the fifth to the twentieth century. Its purpose is to provide a forum for the publication of work carried out by scholars connected with the Centre for Byzantine, Ottoman and Modem Greek Studies at the University of Birmingham, or who share the aims of its research activities.
About the volume This book presents a comparative study of church order in the East and West of the Christian world. It deals with the development of canon law from the 6th century, the time of Dionysius Exiguus and John Scholastikos, up to the period of Balsamon and Gratian. While the focus is upon Rome and Constantinople, the author includes in his discussion the churches under Islamic rule, in Syria and Persia, and describes the beginnings of Slavonic canon law in Moravia. The issues of church government, the discipline of the clergy (married or celibate), and the question of divorce and re-marriage are key themes. By illustrating how these were faced in the canon law of the Christian churches of late antiquity and the earlier Middle Ages, the book highlights questions of unity and diversity within the Christian tradition.
About the author Clarence Gallagher SJ was lecturer in canon law at Heythrop College, London, and the Gregorian University, Rome, and subsequently Dean of the Canon Law Faculty, and then Rector at the Pontifical Oriental Institute, Rome. He is at present Tutor in canon law at Campion Hall, Oxford University. His publications include Canon Law and the Christian Community: The Role of Law in the Church according to the Summa Aurea of Cardinal Hostiensis, and a series of articles on canon law and ecclesiology.
Preface
This book has its origin in the Martin D’Arcy Memorial Lectures I was invited to give at Campion Hall, Oxford, in Hilary Term 1997. The idea of giving the lectures on the particular theme I have chosen came to me from reading an excellent book, written many years ago, by Sir William Holdsworth. The book was entitled Some Makers of English Law1 and in the preface the author gave this explanation of what he was attempting to do: My two objects are, first to give some account o f the most important of the men whose work entitles them to be reckoned among the Makers o f English Law, and, secondly, so to connect their biographies with the general history of law that the book will be a short biographical history o f English Law. I hope that it will be a useful companion to books on the history of legal institutions and on the history o f the sources and literature o f the law. In this book I have attempted something similar in the field of canon law. I have examined the work of a few outstanding canonists, explained what they did and why they did it, indicating at the same time the contribution they made to the development of canon law.
In linking the biographies of these canonists with the general history of church law, the book brings out the important influence that individuals had on the direction in which canon law developed. The comparison between the Eastern Churches and the Latin Church in the West throughout the first millennium of Christianity shows in a striking way both the similarity and the diversity of canonical traditions within the Church. In the Decree on Ecumenism, the Second Vatican Council urged all who were interested in the restoration of full communion between the Churches of the East and the Catholic Church to give due consideration to ‘The origin and growth of the Eastern Churches, and to the character of the relations which obtained between them and the Roman see before separation’.2 When the Eastern Catholic Churches were being discussed at the Council, it was decreed that ‘in keeping with the Church’s very ancient tradition, the patriarchs of the Eastern Churches are to be attended with special honour’ and that ‘their rights and privileges be restored in accordance with the ancient traditions of each Church and the decrees of ecumenical synods’.
The decree went on immediately to clarify what was meant by the rights and privileges it had mentioned. They were the rights and privileges that were in force when the Churches were still in communion with each other.3 Just what were these ancient rights and privileges ‘which were in force at the time of the union between East and West’? The comparative study of some of the most influential canonical collections used in the East and in the West throughout the first millennium should shed some light on how these rights and privileges were exercised in the united Church, and helps us to see how the Eastern patriarchs led their respective Churches and how the collegiality of the bishops was exercised in practice at various levels of church administration. What becomes clear is the diversity that existed within the Church. In a recent encyclical letter, Ut unum sint, on the importance of ecumenical dialogue, Pope John Paul II invited all who call themselves disciples of Christ to redouble their commitment to achieving the full unity of all Christians; and he made the following statement: W hatever relates to the unity o f all Christian com m unities clearly form s part o f the concerns o f the p rim acy... I am convinced that I have a particular responsibility in this regard, above all in acknow ledging the ecum enical aspirations o f the majority o f Christian com m unities and in heeding the request m ade to m e to find a w ay o f exercising the prim acy w hich, w h ile in no w ay renouncing what is essential to its m ission, is nonetheless open to a new situation.4 The examination of the canonical collections that were used throughout the first millennium illustrates how the Roman primacy was exercised in that period. It shows clearly that unity in the faith did not entail uniformity in discipline.
Diversity in unity was acceptable. Perhaps such a study of earlier canonical practice could throw light on the direction in which the Church should move in the third millennium and provide some help in answering Pope John Paul’s desire to heed the request made to him to exercise the primacy in a way that is open to the new situation that now presents itself. In the same encyclical letter, Ut Unum Sint, the Pope declared that ‘legitimate diversity is in no way opposed to the Church’s unity but rather enhances her splendour and contributes greatly to the fulfilment of her mission’.5 In 1976 Cardinal Ratzinger made the following statement: Rome need not require from the East more o f a doctrine o f the primacy than was formulated and lived in the first millennium. When, on July 25, 1967, Patriarch Athenagoras addressed the Pope, visiting the Phanar as Peter’s successor, the first in honour among us, who presides in charity, this great church leader was expressing the essential content o f the declarations o f the first millennium on the primacy; and Rome need not require more.6 In this book I deal only with canonical collections and I am fully aware that this is only one aspect of the Church’s life, and not the most important one. I begin with a discussion of two key sixth-century canonical collections: the Dionysiana, compiled by Dionysius Exiguus in Rome towards the beginning of the sixth century, and the Synagoge in Fifty Titles, produced by John Scholastikos, from Antioch, who was appointed Patriarch of Constantinople by Justinian in 565. These two collections constituted the foundation for the study and development of canon law in the Western Church and in the Church of Constantinople. All later collections were built on the work of these two renowned canonists. I then move on to the ninth century and compare the edition of the Greek Nomokanon in Fourteen Titles that was published in 882, in Constantinople, while Photios was Patriarch, with the Western canonical collection now known as the Pseudo-Isidorian Decretals (c. 845-852). This collection was never officially promulgated by any Western church authority but I have chosen to discuss it here both because it clearly expressed the direction in which Western (Latin) canon law was moving at that time and because of the decisive influence this collection had on later Latin canon law.
In the third chapter I remain in the ninth century and discuss the work of the two great Apostles of the Slavs, Saints Cyril and Methodios, in laying the foundations of the Slavonic Church. St Methodios made a Slavonic version of the Greek Synagoge in Fifty Titles that became the foundation for later developments in the Slavonic Church. In the fourth chapter and the fifth I move on to the twelfth century and compare the work of the two most prominent canonists of the period. In the Concordia Discordantium Canonum (c. 1141) Gratian, in Bologna, provided a comprehensive summary of the canonical tradition of the Western Church for the first millennium - the ius antiquum - that would form the foundation for and greatly influence the subsequent development of canon law in the Latin Church. Theodore Balsamon, in his Commentaries on the Nomokanon in Fourteen Titles, (c. 1170) gave an authoritative and comprehensive account of the canon law as this had developed in the Church of Constantinople. Part II of the Nomokanon, the chronological collection of canons, remains to this day the ius vigens for the Greek Orthodox Church.
Having discussed the development of the canon law in the Latin Church of the West and in Constantinople, I went on to ask what happened to the other three ancient patriarchates of the East, Alexandria, Antioch and Jerusalem, the other members of the Pentarchy. These were, of course, over-run by Islam in the seventh century, but Churches continued to exist and grow under Islam. I thought that it would be both interesting and instructive to go outside the West and the Roman or Byzantine Empire and see how canon law had developed in those Eastern Churches that had continued to flourish and expand under Islamic domination, in Syria and Persia. In the sixth chapter, therefore, I discuss the work of two outstanding canonists of these Churches: the Nomokanon of Bar Hebraeus, produced for the Syrian Orthodox Church in the second half of the thirteenth century, but which preserves the canonical traditions of the first millennium, and the two canonical collections compiled by ‘Abhdiso’ bar Berikha, better known in the West as Ebedjesus, ‘the greatest writer among East Syrians in the second millennium’.7 A bishop of the Assyrian Church of the East, Ebedjesus was Metropolitan of Nisibis from 1291 to 1318. He left a clear account of the canonical traditions of the Church of the East in two important works: the Collection of the Synodical Canons, (often referred to as the Nomokanon ‘Abhdiso’), and The Regulations of Ecclesiastical Judgments and Laws. These Syriac collections show how these Churches were administered under Islam and how they were able to preserve their own distinctive ecclesial traditions.
What follows is a book about the development of canon law in the first millennium of Christianity: in the West and in Constantinople, in Syria and in Persia. I discuss the self-understanding of the Churches as this is reflected in their law-books. The theme that binds the chapters together is the parallel discussion of three issues: the constitution and governance of the Church (monarchical, patriarchal/imperial, synodical), the discipline of the clergy (married or celibate) and the question of divorce and re-marriage. By taking these three topics and illustrating how historically they were faced in the canon law of the principal Christian Churches, I try to highlight precisely the unity and the diversity within the different branches of the Church in the first millennium. Finally, I provide a brief summary of some conclusions that I suggest may be drawn from this comparative study of canon law in the East and in the West. Reflecting on how these Churches developed their own canonical discipline and went their separate ways might provide some guidance on how ‘Sister Churches’ might possibly act in the third millennium, when diversity in administration and in discipline need not be seen as incompatible with unity in the Christian faith. From this point of view the book can be seen as a contribution to the literature on ecumenism.
I have used only printed editions of the collections discussed in this book. There is no critical edition of the Dionysiana, so I have used C. JustePs edition of 1628, as reproduced in PL, vol. 67. For the compilation of John Scholastikos, there is the excellent critical edition by V. BeneSeviC (Munich 1937). The most recent and most satisfactory edition of the Nomokanon in XIV Titles is that produced by J. B. Pitra in his luris ecclesiastici Graecorum historia et monumenta, vol. II (Rome 1864-1868), but I have also made use of RP, vol. I (Athens 1852). For reasons explained in Chapter Two I have used J. Merlin’s 1524 edition of the False Decretals, as printed in PL, vol. 130 rather than that published by P. Hinschius in 1863.8 For the Nomokanon of Methodios there is the fine edition in Slavonic, Czech and Greek in MMFH, vol. 4 (Prague - Brno 1971). E. Friedberg’s edition of Gratian’s Concordia Discordantium Canonum (Leipzig 1879) is the best available for the present. For Theodore Balsamon’s commentaries on the canons I have used both RP, vols II-IV (Athens 1852-1854) as well as PG, vols 137 and 138.
I refer also to PG, vol. 104 for Balsamon’s commentary on the Nomokanon, since PG is available in most theological libraries. For the Nomokanon of Bar Hebraeus I have had to make use of A. Mai’s edition with J. A. Assemani’s Latin translation (Rome 1838), while taking the precaution of getting important passages checked for accuracy. Also for the Collection of Synodical Canons by Ebedjesus I have used A. Mai’s 1838 edition with the Latin translation by J. A. Assemani, whereas for the Order o f Ecclesiastical Judgments, there is the fine edition and Latin translation by J. M. Vost6 (Rome 1940). Following the example of the ODB, Greek terms and names have been transliterated, unless there is a traditional latinized or anglicized from.
In conclusion, I would like to thank all those who encouraged me in this project: in particular, Dr Joseph Munitiz, S.J., who invited me to give the Martin D’Arcy Lectures and even suggested the topic, Dr Sebastian Brock, Dr Robert Ombres, O.P. and Dr Gerard McKay, all of whom made very helpful suggestions. I am also most grateful to Dr John Smedley of Ashgate Publishing House for his encouragement. However, I owe a special debt of gratitude to two friends. The first is Dr Robert Butterworth, who with great patience read through the manuscript several times carefully and preserved me from many inaccuracies. The other is Jaroslaw Dziewicki, managing editor of Orientalia Christiana Periodica at the Oriental Institute in Rome, who with meticulous care prepared the manuscript for publication in such a professional way. Their generosity has been outstanding and I am most grateful.
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