canon law

The body of officially established rules governing the faith and practice of the members of a Christian church.

For more information on canon law, visit Britannica.com.

Canon law was the law of the universal church and from the 4th cent. became a complete legal system, taking much inspiration from the civil (Roman) law. All European countries accepted the authority of canon law and the conflict between church and state in many countries, and in England notably between Henry II and Thomas Becket, arose from disputes over the boundaries between canon law and domestic law in matters such as advowsons (the right to present to a clergy living), criminous clerks, or other jurisdictional disputes.

This entry is a subtopic of Law.

The basic elements of canon law were the Decretum (c. 1140) and the Decretales (1234). The Decretum (The concordance of discordant canons), compiled by a monk named Gratian, brought together materials related to the law and the administration of the church from a wide variety of sources in a dialectic fashion, in order to create a uniform body of law for the universal church. The Decretales (The Gregorian decretals) consisted of approximately two thousand decretal letters, judicial decisions, that various popes issued between the mid-twelfth and the early thirteenth century. Eventually several smaller collections were added as well: the Liber sextus (The sixth book of decretals; 1298); the Constitutiones Clementinae (The Clementine constitutions; 1317), and the Extravagantes a Johanne Papa XXII (Decretal letters of Pope John XXII; 1325). The last brief collection was the Extravagantes communes compiled at the end of the fifteenth century.

In addition to texts in the Corpus iuris canonici, canon law also contained commentaries based on glossing the texts. Initially brief marginal comments explaining unusual words and phrases and referring the reader to related materials elsewhere, the glosses grew longer and more detailed. By the mid-thirteenth century there existed a standard commentary, a Glossa ordinaria, on the Decretum and one on the Decretales. These provided a kind of basic textbook based on the writings of a number of early canonists. Subsequently, many canonists wrote longer commentaries, not simply defining obscure terms and citing related materials but writing at length on substantive issues raised in the texts. Some of these commentaries contained in effect brief legal treatises on points of law and even political theory. The most extensive of these commentaries was that of Johannes Andreae (c. 1270–1348).

The period 1140–1378 was the golden age of canon law, the period when the law was fully formed and produced its greatest thinkers. Scholars judge the post-1378 period in the history of canon law as sterile, an era when commentators repeated thoughts of their predecessors without adding significantly to the law. Part of the reason for this division was that after 1325, papal judgment letters, decretals, were replaced as the basis of the law by decisions of the other papal courts, especially that known as the Rota. Nevertheless, canonists continued to produce extensive commentaries on the Decretales, often running to several volumes, that have received little scholarly attention although there is evidence that they deserve more extensive analysis. John F. Mc Govern has argued that many early modern economic concepts that Max Weber and others associated with the Protestant Reformation had in fact existed in the works of fifteenth-century Italian canonists.

During the sixteenth and seventeenth centuries, the Protestant Reformation and the Catholic response to it had a significant effect on the development of canon law. The major effect of the Reformation was that canon law was no longer the recognized law of Christian Europe. Now only Catholic countries recognized canon law, and even in those countries agreements between Catholic rulers and the papacy granted wide powers to the rulers in return for supporting the papacy, agreements that restricted the jurisdiction of the law. Such agreements, concordats, effectively limited the role of the papacy and therefore of the canon law within Catholic kingdoms. The agreements often required the papacy to seek royal permission before circulating statements on ecclesiastical law and doctrine. The climax of this development came with the Peace of Westphalia (1648), which ended the religious wars in Germany. The pope was not invited to send a representative to the negotiations that led to the peace, and Pope Innocent X (1644–1655) condemned the treaty but to no avail. This marked the end of the role of the pope and of canon law in the international relations of Europe.

Within the Catholic community, there were important developments regarding canon law. In response to calls for codifying the canon law to bring all of the disparate materials of the law into a coherent body of law, Pope Pius V (1566–1572), taking advantage of Renaissance humanist scholarship, created a commission composed of cardinals and scholars with a mandate to examine the various manuscript copies of the materials of canon law, to correct errors, and to excise materials that had been added to the original texts. The result was the Corpus iuris canonici (Body of canon law), the official law of the Roman Catholic Church until 1918.

Another source of development in canon law in the sixteenth century was the Council of Trent (1545–1563), which generated a series of canons designed to respond to issues that the Protestant reformers had raised. Overall, the canons and decrees of Trent reinforced the institutional structure of the church, the sacramental system, and the power of the papacy, seeing the reform of the existing church structure as central and rejecting the Protestant argument that the entire ecclesiastical structure, including the canon law, had to be eliminated.

From the perspective of Christian daily life, the most important of the canons of Trent was Tametsi (1563) dealing with marriage law. This decree restated the Catholic position that marriage was a sacrament and subject to ecclesiastical regulation, in opposition to the Protestant view that marriage was fundamentally a civil matter. Tametsi required parental consent, witnesses, formal recording of the marriage, and a blessing by a priest. This ended the older practice of secret marriage entered into by two persons without witnesses, a situation that caused a great deal of confusion for the ecclesiastical courts. Finally, Tametsi forbade secular rulers from interfering in any way with the freedom of their subjects to marry as they wished, thus stressing the right of the individual to enter a marriage without compulsion, a right protected by the requirement that the marriage ceremony be celebrated publicly and in the presence of witnesses.

Martin Luther (1483–1546) famously illustrated the Protestant opinion about canon law when he publicly burned volumes of the law along with other materials that he saw as corrupting the Christian faith by stressing the letter rather than the spirit of Christianity. Protestants rejected the Catholic sacramental system and the entire clerical structure headed by the pope so that it was possible to reject canon law as well. Even those Protestant countries that did retain some elements of canon law rejected any papal role in its functioning.

It was not only the Protestant Reformation that affected the role of canon law in European society in the early modern era. As modern states began to emerge, secular governments also began to take responsibility for marriage and family law, for cases involving wills and probate, and other matters that had previously been within the jurisdiction of the church and canon law. The canon law connected with these activities became the basis of secular law in these areas even in Protestant countries. As a result, one of the most important areas of scholarly research in modern times has concerned the appropriation of canon law by secular lawyers and political theorists in the early modern world. This scholarship has focused attention on three aspects of the development of canon law in the early modern era: the conciliar movement, canon law in the expansion of Europe overseas, and marriage law. In each of these areas, the work of the canonists contributed to the shaping of modern political and legal concepts.

The conciliar movement, a fifteenth-century movement to reform the institutional structure of the Catholic Church, played an important role in subsequent discussion of representative government, because the canonists had wrestled with problems associated with the governance of large communities, the relation of the ruler, that is, the pope, to a representative institution, the council, and the nature of representation within a political community, issues that in the seventeenth century lay at the heart of political debate throughout Europe. Careful analysis of early modern political and legal texts has uncovered not only concepts developed by the canon lawyers but the language of the canonists as well.

A related concept that developed from the debates of the canon lawyers was the notion of the ruler as sovereign and then the application of that concept to the emerging nation-state, making the state answerable to no outside authority. This had emerged in the canonistic tradition as the canonists discussed the powers of the pope and the emperor. The canonists had rejected imperial claims to jurisdiction over all other Christian rulers, arguing instead that Christian kings possessed within their own kingdoms the power identified with the imperial office. Subsequent writers, such as Jean Bodin (1529–1596), whose Six Books of the Republic is usually identified as the initial modern work on the concept of sovereignty, drew heavily on the canonistic tradition in his work.

Finally, in spite of Luther's burning of volumes of the canon law, Protestant churches also employed at least some elements of the canon law tradition. The Church of England was perhaps the most notable example of continued use of the canon law and church courts in a variety of matters, but as recent scholarship has indicated, Lutherans also used elements of canon law. Elements of the medieval canon law can also be found in the major works of John Calvin, whose Institutes and Ecclesiastical Ordinances reflect a highly legal conception of church structure, a conception rooted in the writings of the thirteenth-century canonists.

Bibliography

Primary Source

Canons and Decrees of the Council of Trent. Original text with English translation by H. J. Schroeder. St. Louis and London, 1941.

Secondary Sources

Bernhard, Jean, Charles Lefebvre, and Francis Rapp. L'époque de la réforme et du concile de Trente. Vol. 14 of Histoire du droit et des instituions de l'église en Occident. Paris, 1989.

Brundage, James. Medieval Canon Law. London and New York, 1995.

Helmholz, R. H. Roman Canon Law in Reformation England. Cambridge, U.K., and New York, 1990.

Mc Govern, John F. "The Rise of New Economic Attitudes in Canon and Civil Law, A.D. 1200–1550." The Jurist 32 (1972): 39–50.

Ourliac, Paul, and Henri Gilles. La période post-classique (1378–1500). Vol. 13 of Histoire du droit et des institutions de l'église en Occident. Paris, 1971.

Pennington, Kenneth. The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition. Berkeley, 1993.

Tierney, Brian. Religion, Law, and the Growth of Constitutional Thought, 1150–1650. Cambridge, U.K., and New York, 1982.

Witte, John. Law and Protestantism: The Legal Teachings of the Lutheran Reformation. Cambridge, U.K., and New York, 2002.

—JAMES MULDOON

Any church's or religion's laws, rules, and regulations; more commonly, the written policies that guide the administration and religious ceremonies of the Roman Catholic Church.

Since the fourth century, the Roman Catholic Church has been developing regulations that have had some influence on secular (non-church-related) legal procedures. These regulations are called canons and are codified in the Code of Canon Law (in Latin, Codex juris canonici).

The law of England, which inspired much of the law formed in the United States, was a mixture of canon law and common law (principles and rules of action embodied in case law rather than legislative enactments). Canon law and English common law borrowed heavily from each other throughout medieval times and together formed the basis for many of the legal procedures used in the United States. For example, canon law's influence is still visible in the concepts of the grand jury, presentment (a description of a criminal offense that is based on the jury's own knowledge), and some characteristics of U.S. marriage law.

Canon law has its origins in ancient church writings, decisions made by the general councils of local bishops, and rulings issued by the pope. These ideas were organized in the mid-twelfth century by an Italian law teacher, Gratian. He sorted the collection into religious law, penal law, sacramental law, and other categories. Along with a set of decisions by the pope called Decretals of Gregory IX, Gratian's work formed the main body of canon law for nearly eight hundred years. In 1917, Pope Benedict XV recodified (revised) the canons. Pope John Paul II reissued the Code of Canon Law in 1983 — authorizing increased participation of laity in the church, recognizing the needs of disabled people, and making other changes. A related text, the Code of Canons of the Eastern Churches, was reissued by the Holy See (the seat of papal government) in 1990.

In the Middle Ages, canon law was used in ecclesiastical (church) courts to decide many types of cases that in modern times are decided by civil courts, including criminal offenses. This was because most English Christians did not make a great distinction between secular and spiritual offenses. Crimes that were tried by the church included adultery, blasphemy, slander, heresy (opposition to official religious views), money lending, and gambling. From the late fourteenth to the early sixteenth centuries church courts also heard many breach-of-faith cases concerning contracts, as well as inheritance and marriage-related cases.

Criminal trial procedures in medieval church courts were the source of some features that found their way into common law. Although witnesses were considered the best source of proof of a crime under canon law, suspected offenders could also be tried because of public fame (suspicion in the community that they had committed a crime). An inquest made up of twelve men — a forerunner of royal courts' grand juries — said under oath whether public suspicion existed. If none did, then a judge had no authority to proceed. After establishing public fame, the court's next step was canonical purgation, in which the accused person swore an oath that she or he was innocent. Proof of innocence was accomplished by compurgation, in which several oath helpers would swear that they believed the oath was true. People who objected to the purgation of an accused person had the chance to prove their accusation of guilt.

The use of canon law in governmental decisions is not well documented. In the early fifteenth century, commissions of the English Parliament made use of canonical procedures and canon law experts to decide issues involving laws of war, diplomacy, and other questions. For example, Parliament's justification for deposing King Richard II seems to have been based on papal bulls (decrees).

In modern times, the creation, interpretation, and use of the canons closely resemble those of secular law. The Episcopal Conference of Local Bishops and the National Conference of Catholic Bishops are voting bodies that set policy for the church. When policy has been codified, it is used by judges in Catholic tribunals in determining whether certain practices or requests are acceptable according to the canons. (Catholic tribunals make up the Church's own court system, which interprets canonical policy to resolve questions of church practice.) Case law (previous rulings) is published in Roman Replies and has precedential value. Judges may also request assistance from the Canon Law Society of America, a research organization, in interpreting the canons.

Catholics who appear before a tribunal may consult canon lawyers, who are not usually secular lawyers. A canon lawyer typically completes at least two years' worth of course work in the canons. North American canon lawyers receive their degree in canon law from one of two institutions: the Catholic University of America, in Washington, D.C., or St. Paul University, in Ottawa, Ontario, Canada.

By the end of the twentieth century secular law had eclipsed canon law in most aspects of public life. Interbody disagreements within the church are now often handled administratively rather than by a tribunal, but within the confines of canon law. However, the tribunal is still the only place where Catholics can secure a marriage annulment, and each diocese must maintain a tribunal for this purpose. Divorced Catholics who have been denied an annulment can appeal as far as the Sacred Roman Rota, whose international membership is selected by the pope.

In the 1990s, some dioceses — notably the Archdiocese of Denver — have sought to reduce involvement by civil courts in church disputes by creating dispute resolution mechanisms and other internal mechanisms that make use of the written policies of canon law.

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Canon law is the term used for the internal ecclesiastical law which governs various churches, most notably the Roman Catholic Church, the Eastern Orthodox Churches and the Anglican Communion of churches. 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, for rule, standard, or measure); these canons formed the foundation of canon law.

Canons of the Apostles

Main article: Canons of the Apostles

The Apostolic Canons[1] or Ecclesiastical Canons of the Same Holy Apostles[2] 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 collection.

Catholic Church

Main article: Canon law (Catholic Church)

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

In the Catholic 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. As such, 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 reunited in "Ecumenical" (the Emperor summoning all of the known world's Bishops to attend) or "local" (Bishops of a regional territory) councils. Over time, these canons were concurrently supplemented with decretals of the Bishops of Rome, according to the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, case is closed"), highlighting the supremacy which the Successors of St. Peter claimed from as early as Pope St. Clement I in ca. A.D. 90.

Later, they were gathered together into collections, both unofficial and official. The first systematic attempt at a collection was assembled by the Camaldolese monk Gratian in the 11th century, commonly known as the Decretum ("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, subsequent papal legislation was published in periodic volumes called Bullaria.

By 1917 this body of true legislation grew into 10,000 canons. The rationales of many these were extremely difficult to reconcile due to changes of circumstances across history. This difficult 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 work of the Code Commission 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 from all over the globe 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.

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 re-visioning 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 and presently binding Code of Canon Law for the Latin Rite or Western Rite of the Church in 1983. The Code of Canon Law for the Eastern Churches (CCEO) was promulgated in 1990. This is their first single volume compilation. It incorporates differences in the hierarchical, administrative and judicial fora.

Many of the practices of the state law are due to canon law, affirms Edson Luiz Sampel, a brazilian expert in canon law. According to this jurist, canon law is in the genesis of various institutes of civil law, specially those of roman base, such as the law in the latin countries. Sampel explains that canon law has a lot of influence in nowadays society.

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 Orthodox Christian tradition general treats its canons more as guidelines than as laws, 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 nomoi/νομοι (laws) rather than kanones/κανονες (standards).

The Orthodox have collected canons and commentaries upon them in a work known as the Pedalion/Πεδαλιον ("The Rudder," so named because it is meant to "steer" the Church). These canons, or standard measures, or ephemeral opinions, are based on particular spacetime circumstances and conditions, and are not eternal or infallible. Canons are neither the Gospel nor do they hold Gospel-surrogate status.

Anglican Churches

Main article: Canon law (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.

See also

• Antinomianism
• Canon law (Church of England)
• Canon law (Episcopal Church in the United States)
• Canons of Dort
• Canons of the Apostles
• Collections of Ancient Canons
• Decretum Gratiani
• Doctor of Canon Law
• Ecclesiastical court
• Fetha Negest
• Gratian (jurist)
• Licentiate of Canon Law
• Probatio diabolica

References

1. ^ http://canonlaw.info

Further reading

• Baker, J.H. (2002) An Introduction to English Legal History, 4th ed. London : Butterworths, ISBN 0-406-93053-8
• 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.
• Robinson, O.F.,Fergus, T.D. and Gordon, W.M. (2000) European Legal History, 3rd ed., London : Butterworths, ISBN 0-406-91360-9

External links

Catholic

• Code of Canon Law (1983) : non-official but approved IntraText edition with concordance in English (only the Latin version is official), hosted by the Vatican
• Code of Canons of Oriental Churches, IntraText Digital Library
• Code of Canon Law, IntraText Digital Library, organized in a Table of Contents outline format for easy search: Does not contain 1998 code updates
• Catholic Encyclopedia: Canon Law : outdated, but useful

Anglican

• "Canons of the Church of England"
• "Canon Law in the Anglican Communion"
• "Ecclesiastical Law Society"

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