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Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches.[1] The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was initially a rule adopted by a council (From Greek kanon / κανών, Hebrew kaneh / קנה, for rule, standard, or measure); these canons formed the foundation of canon law.

Contents

Canons of the Apostles

The Apostolic Canons[2] or Ecclesiastical Canons of the Same Holy Apostles[3] is a collection of ancient ecclesiastical decrees (eighty-five in the Eastern, fifty in the Western Church) concerning the government and discipline of the Early Christian Church, incorporated with the Apostolic Constitutions which are part of the Ante-Nicene Fathers

Roman Catholic Church

Image of pages from Burchard of Worms' Decretum, the 11th c. book of Canon Law.

The Roman Catholic Church has the oldest continuously functioning legal system in Western Europe,[4] predating the common and European civil law traditions. What began with rules ("canons") adopted by the Apostles at the Council of Jerusalem in the 1st century has blossomed into a highly complex and original legal system encapsulating not just norms of the New Testament, but some elements of the Hebrew (Old Testament), Roman, Visigothic, Saxon, and Celtic legal traditions spanning thousands of years of human experience.

In the Roman Church, positive ecclesiastical laws, based upon either immutable divine and natural law, or changeable circumstantial and merely positive law, derive formal authority and promulgation from the pope, who as Supreme Pontiff possesses the totality of legislative, executive, and judicial power in his person. The actual subject material of the canons is not just doctrinal or moral in nature, but indeed all-encompassing of the human condition.

In the early Church, the first canons were decreed by bishops united in "Ecumenical" councils (the Emperor summoning all of the known world's bishops to attend with at least the acknowledgement of the Bishop of Rome) or "local" councils (bishops of a region or territory). Over time, these canons were supplemented with decretals of the Bishops of Rome, which were responses to doubts or problems according to the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, case is closed").

Later, they were gathered together into collections, both unofficial and official. The first truly systematic collection was assembled by the Camaldolese monk Gratian in the 11th century, commonly known as the Decretum Gratiani ("Gratian's Decree"). Pope Gregory IX is credited with promulgating the first official collection of canons called the Decretalia Gregorii Noni or Liber Extra (1234). This was followed by the Liber Sextus (1298) of Boniface VIII, the Clementines (1317) of Clement V, the Extravagantes Joannis XXII and the Extravagantes Communes, all of which followed the same structure as the Liber Extra. All these collections, with the Decretum Gratiani, are together referred to as the Corpus Juris Canonici. After the completion of the Corpus Juris Canonici, subsequent papal legislation was published in periodic volumes called Bullaria.

By the 19th Century, this body of legislation included some 10,000 norms. Many these were difficult to reconcile with one another due to changes in circumstances and practice. This situation impelled Pope St. Pius X to order the creation of the first Code of Canon Law, a single volume of clearly stated laws. Under the aegis of the Cardinal Pietro Gasparri, the Commission for the Codification of Canon Law was completed under Benedict XV, who promulgated the Code, effective in 1918. The work having been begun by Pius X, it was sometimes called the "Pio-Benedictine Code" but more often the 1917 Code. In its preparation, centuries of material was examined, scrutinized for authenticity by leading experts, and harmonized as much as possible with opposing canons and even other Codes, from the Codex of Justinian to the Napoleonic Code.

Cover of the 1917 Code of Canon Law .

Pope John XXIII initially called for a Synod of the Diocese of Rome, an Ecumenical Council, and an updating to the 1917 Code. After the Second Ecumenical Council of the Vatican (Vatican II) closed in 1965, it became apparent that the Code would need to be revised in light of the documents and theology of Vatican II. After multiple drafts and many years of discussion, Pope John Paul II promulgated the revised Code of Canon Law (CIC) in 1983. Containing 1752 canons, it is the law currently binding on the Latin (western) Roman Church.

The canon law of the Eastern Catholic Churches, which had developed some different disciplines and practices, underwent its own process of codification, resulting in the Code of Canons of the Eastern Churches promulgated in 1990 by Pope John Paul II. The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern Civil law and Common law bear the influences of canon law. Edson Luiz Sampel, a Brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Sampel explains that canon law has significant influence in contemporary society.

Currently, all Roman Catholic seminary students are expected to take courses in canon law (c. 252.3). Some ecclesiastical officials are required to have the doctorate (JCD) or at least the licentiate (JCL) in canon law in order to fulfill their functions: Judicial Vicars (c. 1419.1), Judges (c. 1421.3), Promoters of Justice (c. 1435), Defenders of the Bond (c. 1435). In addition, Vicars General and Episcopal Vicars are to be doctors or at least licensed in canon law or theology (c. 478.1), and canonical advocates must either have the doctorate or be truly expert in canon law (c. 1483). Ordinarily, Bishops are to have advanced degrees in sacred scripture, theology, or canon law (c. 378.1.5). St. Raymond of Penyafort (1175-1275), a Spanish Dominican priest, is the patron saint of canonists, due to his important contributions to the science of Canon Law.

Orthodox Churches

The Greek-speaking Orthodox have collected canons and commentaries upon them in a work known as the Pēdálion (Greek: Πηδάλιον, "Rudder"), so named because it is meant to "steer" the Church. The Orthodox Christian tradition in general treats its canons more as guidelines than as laws, the bishops adjusting them to cultural and other local circumstances. Some Orthodox canon scholars point out that, had the Ecumenical Councils (which deliberated in Greek) meant for the canons to be used as laws, they would have called them nómoi/νόμοι (laws) rather than kanónes/κανόνες (rules), but almost all Orthodox conform to them. The dogmatic decisions of the Councils, though, are to be obeyed rather than to be treated as guidelines, since they are essential for the Church's unity.

Anglican Churches

In the Church of England, the ecclesiastical courts that formerly decided many matters such as disputes relating to marriage, divorce, wills, and defamation, still have jurisdiction of certain church-related matters (e.g., discipline of clergy, alteration of church property, and issues related to churchyards). Their separate status dates back to the 12th century when the Normans split them off from the mixed secular/religious county and local courts used by the Saxons. In contrast to the other courts of England the law used in ecclesiastical matters is at least partially a civil law system, not common law, although heavily governed by parliamentary statutes. Since the Reformation, ecclesiastical courts in England have been royal courts. The teaching of canon law at the Universities of Oxford and Cambridge was abrogated by Henry VIII; thereafter practitioners in the ecclesiastical courts were trained in civil law, receiving a Doctor of Civil Law (D.C.L.) degree from Oxford, or an LL.D. from Cambridge. Such lawyers (called "doctors" and "civilians") were centred at "Doctors Commons," a few streets south of St Paul's Cathedral in London, where they monopolized probate, matrimonial, and admiralty cases until their jurisdiction was removed to the common law courts in the mid-19th century. (Admiralty law was also based on civil law instead of common law, thus was handled by the civilians too.) Charles I repealed Canon Law in 1638 after uprisings of Covenanters confronting the Bishops of Aberdeen following the convention at Muchalls Castle and other revolts across Scotland earlier that year.

Other churches in the Anglican Communion around the world (e.g., the Episcopal Church in the United States, and the Anglican Church of Canada) still function under their own private systems of canon law.

Presbyterian and Reformed Churches

In Presbyterian and Reformed Churches, canon law is known as "practice and procedure" or "church order," and includes the church's laws respecting its government, discipline, legal practice and worship.

Lutheranism

The Book of Concord is the historic doctrinal statement of the Lutheran Church, consisting of ten credal documents recognized as authoritative in Lutheranism since the 16th century.[5] The English translation of the Book of Concord was published in 2006. However, the Book of Concord is a confessional document (stating orthodox belief) rather than a book of ecclesiastical rules or discipline, like canon law. Each Lutheran national church establishes its own system of church order and discipline, though these are rarely referred to can "canons."

The United Methodist Church

The Book of Discipline contains the laws, rules, policies and guidelines for The United Methodist Church. Its last edition was published in 2008.

See also

References

  1. ^ "Canon law". Catholic Encyclopedia. http://www.newadvent.org/cathen/09056a.htm. Retrieved 2008-05-26. 
  2. ^ "Catholic Encyclopedia: Apostolic Canons". New Advent. http://www.newadvent.org/cathen/03279a.htm. Retrieved 2008-05-26. 
  3. ^ "The Ecclesiastical Canons of the Same Holy Apostles". Ante-Nicene Fathers, Vol VII. http://www.sacred-texts.com/chr/ecf/007/0070471.htm. Retrieved 2008-05-26. 
  4. ^ Canon Law @Canonlaw.info
  5. ^ F. Bente, ed. and trans., Concordia Triglotta, (St. Louis: Concordia Publishing House, 1921), p. i

Further reading

  • Baker, J.H. (2002) An Introduction to English Legal History, 4th ed. London : Butterworths, ISBN 0-406-93053-8
  • Brundgage, James A., The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts, Chicago : University of Chicago Press, c2008.
  • Brundage, James A., Medieval Canon Law, London ; New York : Longman, 1995.
  • The Episcopal Church (2006) Constitution and Canons, together with the Rules of Order for the Government of the Protestant Episcopal Church in the United States of America, otherwise known as The Episcopal Church, New York : Church Publishing, Inc.
  • R. C. Mortimer, Western Canon Law, London: A. and C. Black, 1953.
  • Robinson, O.F.,Fergus, T.D. and Gordon, W.M. (2000) European Legal History, 3rd ed., London : Butterworths, ISBN 0-406-91360-9

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Catholic

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1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

ECCLESIASTICAL LAW, in its broadest sense, the sum of the authoritative rules governing the Christian Church, whether in its internal polity or in its relations with the secular power. Since there are various churches, widely differing alike in their principles and practice, it follows that a like difference exists in their ecclesiastical law, which is the outcome of their corporate consciousness as modified by their several relations to the secular authority. At the outset a distinction must be made between churches which are "established" and those that are "free." The ecclesiastical laws of the latter are, like the rules of a private society or club, the concern of the members of the church only, and come under the purview of the state only in so far as they come in conflict with the secular law (e.g. polygamy among the Mormons, or violation of the trust-deeds under which the property of a church is held). In the case of "established" Churches, on the other hand, whatever the varying principle on which the system is based, or the difference in its practical application, the essential conditions are that the ecclesiastical law is also the law of the land, the decisions of the church courts being enforced by the civil power. This holds good both of the Roman Catholic Church, wherever this is recognized as the "state religion," of the Oriental Churches, whether closely identified with the state itself (as in Russia), or endowed with powers over particular nationalities within the state (as in the Ottoman empire), and of the various Protestant Churches established in Great Britain and on the continent of Europe.

Writers on the theory of ecclesiastical law, moreover, draw a fundamental distinction between that of the Church of Rome and that of the Protestant national or territorial Churches. This distinction is due to the claim of the Roman Catholic Church to be the only Church, her laws being thus of universal obligation; whereas the laws of the various established Protestant Churches are valid - at least so far as legal obligation is concerned - only within the limits of the countries in which they are established. The practical effects of this distinction have been, and still are, of enormous importance. The Roman Catholic Church, even when recognized as the state religion, is nowhere "established" in the sense of being identified with the state, but is rather an imperium in imperio which negotiates on equal terms with the state, the results being embodied in concordats (q.v.) between the state and the pope as head of the Church. The concordats are of the nature of truces in the perennial conflict between the spiritual and secular powers, and imply in principle no surrender of the claims of the one to those of the other. Where the Roman Catholic Church is not recognized as a state religion, as in the United States or in the British Islands, she is in the position of a "free Church," her jurisdiction is only in Toro conscientiae, and her ecclesiastical laws have no validity from the point of view of the state. On the other hand, the root principle of the ecclesiastical law of the established Protestant Churches is the rejection of alien jurisdiction and the assertion of the supremacy of the state. The theory underlying this may vary. The sovereign may be regarded, as in the case of the Russian emperor or of the English kings from the Reformation to the Revolution, as the vicar of God in all causes spiritual as well as temporal within his realm. As the first fervent belief in the divine right of kings faded, however, a new basis had to be discovered for a relation between the spiritual and temporal powers against which Rome had never ceased to protest. This was found in the so-called "collegial" theory of Church government (Kollegialsystem), which assumed a sort of tacit concordat between the state and the religious community, by which the latter vests in the former the right to exercise a certain part of the jus in sacra properly inherent in the Church (see Pufendorf, Samuel). This had great and lasting effects on the development of the theory of Protestant ecclesiastical law on the continent of Europe. In England, on the other hand, owing to the peculiar character of the Reformation there and of the Church that was its outcome, no theory of the ecclesiastical law is conceivable that would be satisfactory at once to lawyers and to all schools of opinion within the Church. This has been abundantly proved by the attitude of increasing opposition assumed by the clergy, under the influence of the Tractarian movement, towards the civil power in matters ecclesiastical, an attitude impossible to justify on any accepted theory of the Establishment (see below).

Protestant ecclesiastical law, then, is distinguished from that of the Roman Catholic Church (1) by being more limited in its scope, (2) by having for its authoritative source, not the Church only or even mainly, but the Church in more or less complete union with or subordination to the State, the latter being considered, equally with the Church, as an organ of the will of God. The ecclesiastical law of the Church of Rome, on the other hand, whatever its origin, is now valid only in so far as it has the sanction of the authority of the Holy See. And here it must be noted that the "canon law" is not identical with the "ecclesiastical law" of the Roman Catholic Church. By the canon law is meant, substantially, the contents of the Corpus juris canonici, which have been largely superseded or added to by, e.g. the canons of the council of Trent and the Vatican decrees. The long projected codification of the whole of the ecclesiastical law of the Church of Rome, a work of gigantic labour, was not taken in hand until the pontificate of Pius X. (See also Canon Law and Ecclesiastical Jurisdiction.) The ecclesiastical law of England is in complete dependence upon the authority of the state. The Church of England cannot be said, from a legal point of view, to have a corporate existence or even a representative assembly. The Convocation of York and the Convocation of Canterbury are provincial assemblies possessing no legislative or judicial authority; even such purely ecclesiastical questions as may be formally commended to their attention by "letters of business" from the crown can only be finally settled by act of parliament. The ecclesiastical courts are for the most part officered by laymen, whose subordination to the archbishops and bishops is purely formal, and the final court of appeal is the Judicial Committee of the Privy Council. In like manner changes in the ecclesiastical law are made directly by parliament in the ordinary course of legislation, and in point of fact a very large portion of the existing ecclesiastical law consists of acts of parliament.

The sources of the ecclesiastical law of England are thus described by Dr. Richard Burn (The Ecclesiastical Law, 9th ed., 1842): - "The ecclesiastical law of England is compounded of these four main ingredients - the civil law, the canon law, the common law, and the statute law. And from these, digested in their proper rank and subordination, to draw out one uniform law of the church is the purport of this book. When these laws do interfere and cross each other, the order of preference is this:- ` The civil law submitteth to the canon law; both of these to the common law; and all three to the statute law. So that from any one or more of these, without all of them together, or from all of them together without attending to their comparative obligation, it is not possible to exhibit any distinct prospect of the English ecclesiastical constitution.' Under the head of statute law Burn includes ` the Thirty-nine Articles of Religion, agreed upon in Convocation in the year 1562; and in like manner the Rubric of the Book of Common Prayer, which, being both of them established by Acts of Parliament, are to be esteemed as part of the statute law.'" The first principle of the ecclesiastical law in England is the assertion of the supremacy of the crown, which in the present state of the constitution means the same thing as the supremacy of parliament. This principle has been maintained ever since the Reformation. Before the Reformation the ecclesiastical supremacy of the pope was recognized, with certain limitations, in England, and the Church itself had some pretensions to ecclesiastical freedom. The freedom of the Church is, in fact, one of the standing provisions of those charters on which the English constitution was based. The first provision of Magna Carta is quod ecclesia Anglicana libera sit. By the various enactments of the period of the Reformation the whole constitutional position of the Church, not merely with reference to the pope but with reference to the state, was definitely fixed. The legislative power of convocation was held to extend to the clergy only, and even to that extent required the sanction and assent of the crown. The common law courts controlled the jurisdiction of the ecclesiastical courts, claiming to have "the exposition of such statutes or acts of parliament as concern either the extent of the jurisdiction of these courts or the matters depending before them. And therefore if these courts either refuse to allow these acts of parliament, or expound them in any other sense than is truly and properly the exposition of them, the king's great courts of common law may prohibit and control them." The design of constructing a code of ecclesiastical laws was entertained during the period of the Reformation, but never carried into effect. It is alluded to in various statutes of the reign of Henry VIII., who obtained power to appoint a commission to examine the old ecclesiastical laws, with a view of deciding which ought to be kept and which ought to be abolished; and in the meantime it was enacted that "such canons, institutions, ordinances, synodal or provincial or other ecclesiastical laws or jurisdictions spiritual as be yet accustomed and used here in the Church of England, which necessarily and conveniently are requisite to be put in ure and execution for the time, not being repugnant, contrarient, or derogatory to the laws or statutes of the realm, nor to the prerogatives of the royal crown of the same, or any of them, shall be occupied, exercised, and put in ure for the time with this realm" (35 Henry Viii. C. 16, 25 C. 19, 27 C. 8).

The work was actually undertaken and finished in the reign of Edward VI. by a sub-committee of eight persons, under the name of the Reformatio legum ecclesiasticarum, which, however, never obtained the royal assent. Although the powers of the 25 Henry VIII. c. I were revived by the i Elizabeth c. 1, the scheme was never executed, and the ecclesiastical laws remained on the footing assigned to them in that statute - so much of the old ecclesiastical laws might be used as had been actually in use, and was not repugnant to the laws of the realm.

The statement is, indeed, made by Sir R. Phillimore (Ecclesiastical Law, 2nd ed., 1895) that the "Church of England has at all times, before and since the Reformation, claimed the right of an independent Church in an independent kingdom, to be governed by the laws which she has deemed it expedient to adopt." This position can only be accepted if it is confined, as the authorities cited for it are confined, to the resistance of interference from abroad. If it mean that the Church, as distinguished from the kingdom, has claimed to be governed by laws of her own making, all that can be said is that the claim has been singularly unsuccessful. From the time of the Reformation no change has been made in the law of the Church which has not been made by the king and parliament, sometimes indirectly, as by confirming the resolutions of convocation, but for the most part by statute. The list of statutes cited in Sir R. Phillimore's Ecclesiastical Law fills eleven pages. It is only by a kind of legal fiction akin to the "collegial" theory mentioned above, that the Church can be said to have deemed it expedient to adopt these laws.

The terms on which the Church Establishment of Ireland was abolished, by the Irish Council Act of 1869, may be mentioned. By sect. 20 the present ecclesiastical law was made binding on the members for the time being of the Church, "as if they had mutually contracted and agreed to abide by and observe the same"; and by section 21 it was enacted that the ecclesiastical courts should cease after the ist of January 1871, and that the ecclesiastical laws of Ireland, except so far as relates to matrimonial causes and matters, should cease to exist as law. (See also The Church Of England; Establishment; &C.)/n==Authorities== - The number of works on ecclesiastical law is very great, and it must suffice here to mention a few of the more conspicuous modern ones: Ferdinand Walter, Lehrbuch des Kirchenrechts aller christlichen Konfessionen (14th ed., Bonn, 1871); G. Phillips, Kirchenrecht, Bde. i.-vii. (Regensburg, 1845-1872) incomplete; the text-book by Cardinal Hergenrether (q.v.); P. Hinschius, Kirchenrecht der Katholiken and Protestanten in Deutschland, 6 Bde. (Berlin, 1869 sqq.), only the Catholic part, a masterly and detailed survey of the ecclesiastical law, finished; Sir Robert Phillimore, Eccl. Law of the Church of England (2nd ed., edited by Sir Walter Phillimore, 2 vols., London, 1895). For further references see Canon Law, and the article "Kirchenrecht" in Herzog-Hauck, Realencyklopeidie (ed. Leipzig, 1901).


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