Canon Law

I INTRODUCTION

Canon Law (Greek, kanon, “rule” or “measure”), usually, the body of legislation of hierarchical Christian Churches dealing with matters of constitution or discipline. Although all religions have regulations, the term applies mainly to the formal systems of the Roman Catholic, Orthodox, and Anglican communions. It is distinguished from the civil or secular law, but conflict can arise in areas of mutual concern (for example, marriage and divorce). Canon law represents the outer limits of Church law, and within those limits, members of the hierarchy from the pope to parish priests are free to issue additional rules, as long as they do not contradict the canons or canonically authorized documents.

II COMPONENTS

In its origins, canon law consisted of the enactments of councils or synods of bishops, and the Anglican and Orthodox Churches so restrict it today. The Roman Catholic Church also recognizes the authority of the pope to make universal law and that certain customary practices may acquire the force of law. The Roman Catholic Church has by far the most elaborate body of law and, to provide training in it, has chartered graduate faculties in a number of universities throughout the world. The doctorate in canon law requires at least four years of study beyond the Bachelor of Arts degree. Each diocese has a Church court or tribunal staffed by canon lawyers. In modern times diocesan Church courts have dealt almost exclusively with marriage nullity cases.

The full range of canon law in contemporary times may be seen in the Roman Catholic Church, which promulgated a revised Latin code in 1983. Promulgated by the authority of Pope John Paul II, this code consists of seven books for a total of 1,752 canons. Each book is divided into titles, but in the larger books, the titles are grouped in parts and even in sections. A Code of Canons of the [Roman Catholic] Eastern Churches was promulgated in 1990.

Book One, “General Norms”, includes 203 canons under 11 titles: ecclesiastical laws (definition and application); custom; general decrees and instructions; individual administrative acts (precepts, rescripts, privileges, and dispensations); statutes and rules of order; physical and juridic persons; juridic acts; the power of governance; ecclesiastical offices; prescription; and the computation of time.

Book Two, “The People of God”, is, from a theological perspective, the most significant book. Its 543 canons are organized into three parts: “The Christian Faithful”, “The Hierarchical Constitution of the Church”, and “Institutes [communities] of Consecrated Life and Societies of Apostolic Life”. Among the Christian faithful a distinction is made between clergy and laity, and their respective rights and duties are spelled out. The hierarchical constitution of the Church establishes the supreme authority (the Roman pontiff and the college of bishops, the synod of bishops, the cardinals, the Roman Curia, and papal legates) and the particular churches (dioceses, archdioceses [ecclesiastical provinces], episcopal conferences, as well as parishes and deaneries). Part Three regulates the various types of religious communities: institutes of consecrated life (for example, Jesuits, Franciscans, Visitation nuns), secular institutes (for example, Opus Dei), and societies of apostolic life (for example, Paulists, Sulpicians, Vincentians).

Book Three, “The Church’s Teaching Mission”, consists of 87 canons concerned with preaching, catechizing, missionary activity, Christian education, publications, and the profession of faith.

Book Four, “The Church’s Sanctifying Role”, regulates in 420 canons the seven sacraments: baptism, confirmation, the Holy Eucharist, penance, the anointing of the sick, holy orders, and matrimony. The canons prescribe the proper minister for each, the necessary dispositions on the part of the recipient, and the ceremonial to be observed. The second part of the book discusses other religious acts: sacramentals (for example, blessings and exorcisms); the Liturgy of the Hours, or divine office; funerals; devotion to the saints (sacred images and relics); vows and oaths. The third part is concerned with sacred places (churches and cemeteries) and sacred times (holy days and days of fast and abstinence).

Book Five, “The Temporal Goods of the Church”, regulates property in 57 canons: its acquisition, administration, and alienation. It also deals with pious wills and pious foundations.

Book Six, “Sanctions in the Church”, consists of 89 canons concerned with ecclesiastical penalties such as excommunication, interdict, and suspension. Various crimes and offences are listed with specific sanctions attached. Types of delicts (or offences against the law) are as follows: apostasy, heresy, and schism (against religion and the unity of the Church); physical violence, incitement to disobedience, and unauthorized alienation of property (against ecclesiastical authorities and the liberty of the Church); simulation of the sacraments, unauthorized ordinations, and violation of the seal of confession (usurpation of ecclesiastical functions); falsification of Church documents and injury of a person’s good name; clerics engaging in business or trade or attempting marriage (against special obligations); homicide and abortion (against human life and liberty).

Book Seven, “On Processes”, treats procedural law in 353 canons. Every diocesan bishop is required to appoint a judicial vicar, or official is, who is to have ordinary jurisdiction over all cases except those that the bishop may reserve to himself. Other officials include the promoter of justice and the defender of the bond (relating to holy orders and matrimony). The tribunal of the second instance, or court of appeal, is the archdiocesan, or metropolitan, court. The pope, as the supreme judge for the whole Roman Catholic world, may hear cases himself. The ordinary tribunal for receiving appeals to the Holy See is the Roman Rota. The Supreme Tribunal of the Apostolic Signatura is competent to hear complaints against a sentence of the Rota or any act of an ecclesiastical administrative power alleging the error of law or procedure. The code concludes with a section on administrative procedure. In each diocese, an office or council may be permanently established to resolve disputes arising from the exercise of an administrative authority in the Church. A special procedure is provided for the removal and transfer of pastors.

Laws of the Church, as well as those of the state, bind their subjects in conscience. The obligation in conscience does not arise immediately from the laws themselves but from the divine plan, in which people are envisioned as living in both a civil and an ecclesiastical society. Church and state are the judges of what is necessary to realize the common good. Their laws carry a legal obligation of greater or lesser weight, depending on the importance of specific statutes in achieving that end.

The Code of Canon Law itself lays down certain principles of interpretation. Laws that impose a penalty, for example, or restrict the free exercise of rights, or contain an exception from the law are to be strictly interpreted. In canon law, unlike common law, an interpretation given by a court in a judicial sentence does not set a precedent; it has no force of law and binds only those people affected. For an authentic interpretation of the code, a special Roman commission was established in 1917.

III HISTORY

The beginning of canon law may be seen in the New Testament (see Acts 15; 1 Corinthians 11). During the 2nd and 3rd centuries, a number of Church orders (for example, the Didache and the Apostolic Tradition) described as normative certain customary practices of the community. Canon law in the sense of enacted legislation originated in the 4th-century regional councils held in Asia Minor. The enactments of these councils (Ancyra, Neocaesarea, Antioch, Gangra, and Laodicea), together with those of the ecumenical councils of Nicaea (325), Constantinople (381), and Chalcedon (451), formed the nucleus of subsequent collections. They dealt with the structure of the Church (the provincial and patriarchal organization), the dignity of the clergy, the process of reconciling sinners, and Christian life in general.

The oldest Greek canonical collection preserved in the original text is the Synagogue Canonum (around 550) in 50 titles by Johannes Scholasticus. Instead of a chronological arrangement, the canons are grouped systematically according to the subject matter. Another innovation was the accordance of canonical authority to rulings of Church fathers, especially St Basil. The Council of Trullo (692), in giving formal approval to the preceding conciliar legislation and patristic writings, established the basic code for the Eastern Churches that is still normative for the Orthodox.

In the West, the most important canonical collection of the early centuries was made in the 6th century by Dionysius Exiguus. He translated into Latin the canons of the Eastern councils and added 39 papal decretals. The rulings of the popes were thus put on a level with the conciliar law. After the disintegration of the Roman Empire, canon law developed independently in the different kingdoms. National collections were made in which local legislation, intermingled with elements of the Germanic law, were added to the ancient code. Because conciliar activity was particularly intense in Spain, the collection known as the Hispana (later called the Isidoriana after St Isidore of Seville) proved to be outstanding. Of great significance for the future was the institution of the practice of private penance by the Irish monks.

Collections made at the time of Charlemagne (in around 800) and the Gregorian reform in around 1050 reflect the attempt to restore traditional discipline. Great confusion persisted, however, insofar as certain practices accepted in the Germanic law and the penitentials (for example, remarriage after adultery) were in conflict with the programme of the reformers. Ivo of Chartres prepared in about 1095 a set of rules and principles for interpreting and harmonizing texts. The actual work of harmonization was done in about 1140 by Gratian, who is called the father of the science of canon law. Shortly after the revival of Roman law studies at the University of Bologna, Gratian collected all the canon law from the earliest popes and councils up to the Second Lateran Council (1139) in his Decretum or Concordance of Discordant Canons. With its appearance, the period of the is antique came to a close.

The scientific study of law stimulated by the Decretum encouraged the papacy to resolve disputed points and supply needed legislation, thus inaugurating the ius novum. Over the next century, thousands of papal decretals were issued and gradually collected in five compilationes. Compilatio Tertia, consisting of decretals from the first 12 years of his reign, was ordered by Innocent III in 1210 to be used in courts and law schools, thus becoming the first collection in the West to be officially promulgated. Gregory IX commissioned Raymond of Peñafort to organize the five compilationes in one collection, which was promulgated in 1234 and became known as the Extravagantes. Two other official collections were made later: the Liber Sextus (1298) of Boniface VIII and the Constitutiones Clementinae (1317). The Extravagantes of John XXII and the Extravagantes Communes were privately compiled. In 1503 the legist Jean Chappuis printed and published in Paris, under the title Corpus Iuris Canonici, the Decretum of Gratian and the three official and two private collections of decretals. The Corpus, along with the decrees of the Council of Trent (1545-1563), remained the fundamental law of the Roman Catholic Church until the Codex Iuris Canonici appeared in 1917. After the theological updating of the Second Vatican Council (1962-1965), it became necessary for the Roman Catholic Church to undertake a thorough revision of the 1917 code. A special commission was established in 1963, which in 1980 presented the draft of a completely new code. Pope John Paul II, after making a number of revisions, promulgated it on January 25, 1983; it took effect on November 27, 1983.

The Corpus continues to have some validity for the Church of England, which issued its first complete, free-standing Code of Canons in 1603. The medieval law is presupposed except where it has been affected by contrary statute or custom in England. These canons stood virtually unchanged until the mid-19th century when a process of amendments began. The Convocations of Canterbury and York in 1964 and 1969 promulgated a fully revised code that nevertheless maintained the same understanding of the relationship between the present and the medieval tradition. Each of the national churches of the Anglican Communion (for example, Australia, the United States, and Canada) has its own canons, which may or may not directly reference those of the Church of England, though they are similar in format.

Plans have been under way for more than a quarter of a century for the first Great Synod of Eastern Orthodoxy to be held since the 8th century. Among the topics for further study is the codification of the Holy Canons. Current canon law developed largely in response to the Great Schism of 1054.

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