In the area of church discipline, the work of the first four ecumenical councils has an obvious interest for the knowledge of the law and institutions of early Christianity. During this period, 325 to 451, which corresponds to the flowering of the great patristic literature, we can follow — through the canonical legislation of the Councils of Nicea, Constantinople, Ephesus, and Chalcedon as well as other decisions made by these assemblies on specific questions — the evolution of the structures of the Church, of her discipline, and of her relations with the surrounding society. If we compare this and the ante-Nicene period, we see that all sorts of new problems come up while others fade in importance. The canons issued by these councils constitute the core of Church Law in the Christian East, even today. They also formed an important part of the Western Church's law during the first millennium and influenced, in no small way, the western medieval synthesis.
In considering the canonical legislation elaborated and approved by the first four ecumenical councils, it appears quite clear that this was a period of particularly fruitful creativity in the field of the Eastern Church's written law. Although it was not the intention of the Fathers gathered at Nicea to substitute a written, universal law for the already existing customary law with its local variants, many factors since then have turned the scales in favor of written law. In the first place, the unequaled prestige of this “great and holy council” conferred an unquestioned authority on its legislation. Thus around 330, Eusebius of Caesarea, having been asked to become bishop of Antioch, refused the offer by invoking the regulation established by the Fathers of Nicea.1 St. Basil, writing to a priest to order him to stop living with a woman, expressly made reference to the canon of Nicea relevant to this case.2 In the West, the regulations of the great council were held in equally high esteem. Pope Julius spoke of “divine inspiration” in referring to canon 5.3 As for Pope Leo, he declared the legislation of Nicea to be inviolable.4
Another factor favored the predominance of written law. During the first centuries of Christianity, the consciousness of a permanent disciplinary tradition was very strong in each local Church. In the fourth century, many new dioceses were created due to missionary expansion on the one hand and to the reinforcement of one or another theological trend during the Arian crisis on the other. For the same reasons, episcopal transfers, completely exceptional in earlier times, became more numerous; this phenomenon contributed to the breakdown of the links between the bishop and his church. Structures of common and coordinated action were set up, and the working of these new organs had to be made clear. Under these conditions, it was no longer possible to appeal solely to ancient customs; it was necessary to issue regulations intended to apply to the whole Church. Finally the tendency which was sketched out after the reign of Con-stantine and which took final form under Theodosius I — namely, giving the force of state law to the decisions of the church hierarchy — implied the existence of a body of canonical law.5 This evolution was later fully established by the legislation of the Emperor Justinian which confirmed the juridical validity of the canons issued by the Councils of Nicea, Constantinople, Ephesus, and Chalcedon as well as of those local councils accepted by these ecumenical assemblies.6
In many cases, the canons merely endorsed customs which were seen to be legitimate. To the extent that written law (canons and imperial laws) gained ground, custom was more or less limited to the domain of precedents. We could, it is true, quote the statement of Metropolitan Zachary of Chalcedon at the time of the Council of St. Sophia (879-880): “custom has a tendency to outweigh canons,”7 but we must not overestimate the significance of a statement formulated during a discussion or take it as a fundamental principle of Byzantine church law. Appealing to custom remains limited, as we can clearly see in reading the Nomocanon in XIV Titles and the commentaries of Balsamon on this work.8
In the Byzantine East, there was no break in continuity between Late Antiquity and the Middle Ages on the political and socio-cultural level, as there was in the West, but there was constant evolution. The Church had to make concrete adaptations of the old canonical regulations to meet new situations. Canonical creativity was certainly not extinguished after the end of the ninth century, but it was limited to certain areas, principally to marriage and monastic law. No council issued regulations changing church structures already established by the end of the ancient period. Since the canons of Late Antiquity and the early Middle Ages had hardly touched the question of patriarchal privileges,9 it is, therefore, not surprising to find that many Byzantine interpretations of the canons on this question appear to us to be arbitrary and erroneous.10 Many other canons created problems in regard to their meaning and applicability. Given their respect for tradition and their uncontestable legal formalism, the Byzantines avoided as much as possible an appeal to the idea of laws being “out of date.”
After the eleventh century, Byzantium more and more felt the need to have authorized commentaries on the canons. Probably the renaissance of legal studies stimulated an interest in the serious exegesis of canonical texts.11 But we have to wait until the twelfth century to see the first systematic work on this subject. Between 1118 and 1143, Alexis Aristenos, deacon and nomophylax of the Great Church, at the request of the Emperor John II Comnenus, wrote some concise annotations on the Synopsis which was compiled in the sixth or seventh century by Stephen of Ephesus and completed during the second half of the tenth century by Simeon “magistros and logothete.”12 Not very long after 1159, no doubt, John Zonaras wrote his commentary ( Έξήγησις) on the canons, a work which has always been well-received and rightly so. Zonaras classified the canonical documents of the Syntagma in XIV Titles according to an order of the weightiness of the sources. He placed the Canons of the Holy Apostles first; then came those of the ecumenical councils and the general councils of 861 and 879-880. Zonaras put the canons of the local councils and of the Holy Fathers last.13 Although this classification had already been used previously, he made it, henceforth, the accepted order. Zonaras was above all concerned to set out the exact meaning of the texts, also giving necessary clarifications. When required, he compared canons on the same subject and proposed a reasoned reconciliation.14
While he was still deacon and nomophylax in Constantinople, Theodore Balsamon, at the request of the Emperor Manuel Comnenus (1143-1180) and the Ecumenical Patriarch Michael III (1169-1176), elaborated his commentaries on the Nomocanon in XIV Titles. In his interpretation of the canons he showed little originality; he often followed Zonaras to the letter but differed from him in consciously referring to the case law of his time. At the same time, Balsamon was concerned with relating the canons and the civil laws, in conformity with the main goal of his work.15
In Byzantium, the interpretations of these three canonists had a quasi-official position16 and have continued in subsequent periods to be given great weight. Consequently they have influenced the canonical praxis of the whole Orthodox Church. For the historian of institutions, these commentaries are especially interesting in that they show how their authors understood the ancient canons and also how they applied them. Furthermore, references in Balsamon's commentaries to decisions of the patriarchal synod in Constantinople are very valuable for the study of jurisprudence in Byzantium. These works, however, have only a limited use in trying to determine the real thinking of the Fathers who issued these ancient canons.
We must not neglect the anonymous scholia (explanatory notes) found in the manuscripts. We can say the same thing for these notes that was said for the interpretations of the great Byzantine commentators. Nevertheless, it is fitting to underline the fact that these notes are strictly the private opinions of their authors.17
The “Syntagma arranged in alphabetical order according to subject” (Σύνταγμα κατά στοιχεϊον) by hieromonk Matthew Blastares occupies a singular place. This work, written in Thessalonica around 1335, is a collection of canons, civil laws, synodical decrees and commentaries.18 Because of its convenient ordering and the richness of its content, this work was a great success not only among the Greeks but also among the southern Slavs and later among the Russians and Romanians.
The era of Ottoman domination is far from being devoid of interest for the historian of canon law. Nonetheless, even more than in the Middle Ages, the actions of the hierarchy on this subject were taken in the field of case law.19 We have to wait till the turn of the eighteenth century to see the appearance of a new commentary on the corpus of received canons in the Greek Orthodox Church. In 1800, the first edition of the Pedalion was published.20 The text of each canon is followed by a paraphrase in modern Greek along with a commentary often based on Byzantine canonists. Moreover, we find disgressions on different canonical or liturgical points among these numerous and often wordy notes. According to the title of the work, the editors were hieromonk Agapios and the monk Nicodemus (St. Nicodemus the Hagiorite). In reality the essential parts of the work are the work of the latter.21 After some delays, the book received the official approval of the Patriarchate of Constantinople. The reservations set out in the letter of Patriarch Neophyte VII, August, 1902, concerned only changes introduced by hieromonk Theodoret without the knowledge of the authors.22
The Pedalion has always enjoyed a great reputation in Greek-speaking Churches; this is obvious from its many reprintings, without, of course, the far-fetched additions of Theodoret. We can explain this success in different ways: the translation of the canons was done in paraphrases; the commentaries and the notes make for relatively easy reading, even for churchmen and monks having little education. The liturgical and pastoral directives, as well as other additional material, are of obvious practical interest for the clergy. This recension of the canons is on the whole correct, as we can see by comparing the present text with critical editions which we now have. St. Nicodemus the Hagiorite was no stranger to the concerns of textual criticism; this is obvious from his notes, which give the most characteristic variants of the recension of John the Scholastic. Having said this, we must not, however, overestimate the value of the Pedalion. It constitutes, first and foremost, a valuable witness for the understanding of the milieu in which it was formed.23 As for treating the Pedalion as the perfect and therefore untouchable expression of Orthodox canon law, such an attitude is a manifest exaggeration which we often meet in a strict, integrist environment. St. Nicodemus' position on the invalidity of Roman Catholic baptism is particularily appreciated in that milieu.24
For a long time, the Orthodox Slavs were content to reproduce translations of the works of Byzantine commentators on the canons. But in the nineteenth century, Slavic canonists took over the first place. Chronologically speaking, it is proper to mention first the work of Archimandrite John Sokolov, published in St. Petersburg in 1851.25 Nicodemus Milash rightly considered this Russian canonist as the father of Orthodox canonical studies in the modern period.26 Fr. G. Florovsky underlined the scientific value of this work; he wrote that “for the first time, the ancient and fundamental canons of the Church were presented in Russian more in historical than in doctrinal fashion.”27
A work consisting of the canons of the Orthodox Church with commentaries was published in 1895-6 by Nicodemus Milash, who later became Bishop of Dalmatia;28 this work is still of great interest today and shows itself as the fruit of considerable study.29 The interpretations and explanations found in this work, although they must obviously be revised and completed on the basis of more recent studies, are not at all to be minimized. Moreover, it is still used today as a reference work by Orthodox canonists. As for canonical commentaries in Romanian, we can mention the works of Metropolitan Andrew Saguna, N. Popovici, and C. Dron.30
In the West, starting with the seventeenth century, we find some quite worthy works which interpret the ancient canons. We can mention the names of Christian Wolf31 and John Cabassut;32 William Beveridge particularly stands out because of the value of his study of the canons. When he was vicar of Baling, later Bishop of St. Asaph (1704), this erudite Anglican clergyman published his Σννοδικόν.33It was successful not only in the West but also in the Orthodox East. Patriarch Dositheos of Jerusalem (1669-1707) sent a copy of Beveridge's Synodikon to Patriarch Adrian of Moscow (1690-1700) so that the latter could correct the text of the Kormchaya Kniga.34Zeger-Bernard Van Espen (1646-1728), the most famous canonist of the old University of Louvain, found himself entangled in the controversies of his time between the advocates and opponents of the absolute authority of the Roman pontiff; he resolutely took the side of the opponents.35 Van Espen's commentary on the canons is found among the posthumous works of this great scholar; in this work, his point was to make known the authentic church discipline which was eclipsed in the medieval West by canons based on the False Decretals.36 It is not at all surprising, then, that from that time on the works of this Belgian canonist were put on the Index by the Roman curia.
We should also note the work of William Bright, professor at Oxford from 1868-1901.37 His commentaries on the canons of the first four ecumenical councils are still of scholarly interest.38 Henri Leclercq was often inspired by this work. Karl-Joseph Hefele (1809-1898), professor at Tubingen and later bishop of Rottenburg, was the author of a great scholarly work on The History of the Councils, published in seven volumes from 1855 to 1874.39 Even though it has been surpassed on many points by subsequent scientific studies, this work remains a classic reference work. In 1907 the Benedictine monk, Henri Leclercq d'Ornancourt undertook a French translation of the Concilienge-schichte of Hefele,40 which was really to be a complete reworking and enlargement of the German scholar's work.41
Finally, we can mention the book of Henry R. Percival, which constitutes volume 14 in The Nicene and Post-Nicene Fathers, second series.42 It is true that this volume is not an original work, properly speaking, since the comments are completely drawn from the works of ancient and modern canonists. However, we believe it is necessary to note this book because the excursus often represent the personal synthesis of the author. Moreover, the volume is readily available.
The disciplinary legislation issued by the first four Ecumenical Councils undoubtedly constitutes the historical core of Orthodox canon law. This appears to be even more obvious if one takes into account the canonical legislation of the local synods contained in the collection used and therefore approved by the Fathers of Chalcedon.43 Subsequent legislation universally accepted in the Orthodox Church did not introduce basic alterations.44 Such alterations would not have been accepted in the East because of a widespread feeling that not only the Church kerygma but also the fundamental norms of Church order were part and parcel of Holy Tradition. The Fathers of the Seventh Ecumenical Council, with some exaggeration, applied the words of Deuteronomy in the Torah to canonical rules: “To them nothing is to be added, and from them nothing is to be taken away.”45 Thus, changes are always presented as duly justified adjustments of particular details.46 Nowadays, in the light of historical data, we share a far more nuanced view of the real evolution of ecclesiastical institutions. Be that as it may, in Byzantine times and even later on no doubts affecting the validity of the old legislation were expressed.
The understanding of the ancient canons does not interest just the historians of institutions but also all Orthodox practitioners of canon law, since the canons' stipulations constitute the core of all legitimate law still in force.47
The point of all interpretations is obviously to determine the exact meaning of each canon. We must, therefore, investigate the intention of the legislator, mens legislatoris. This is not always an easy task, not just because of the time that separates us from them. Research must be concerned as much with the historical context as with the canonical text itself; we must carefully investigate what the lawgiver wanted to correct, suppress, add, or simply recall to mind. We also properly take into account that the technical terms in canon law had not yet been rigidly fixed.48 Moreover, we must not forget either that the Holy Fathers, the authors of the canons, were not necessarily specialists in legal terminology. Consequently we cannot automatically apply to canon law principles of interpretation established by specialists in civil law. For example, we would really be misled if we strictly applied the rule which says that the lawmaker always “expresses what he wants to say and refrains from saying what he does not want to say.”49 In some cases, uncertainties flow from the wording, which can be understood in several ways due to editorial ambiguities in grammatical construction or punctuation.50 The exact meaning of terms must be determined by taking factors of time and place into account. To neglect these data and arbitrarily put elements together necessarily leads to serious misinterpretations.51Research into the mens legislatoris interests the historian and the canonists, but the canonist has another preoccupation. It is frequently the case that a canon is presented as an act involving a local and limited situation; can we, then consider it as a law in the proper sense, which has general application? Certainly, there are some cases where the purely limited nature of the canon evidently stands out.52 Sometimes only a knowledge of the historical context permits us to affirm that despite its formulation, a canon has an application strictly limited to a moment in church history.53 One of the essential, and at the same time most delicate, problems in interpreting the canons is the use of analogy. There is no doubt at all that this method is perfectly legitimate in itself since, taken in their individual cases, the canons are only concrete expressions on a given subject of the Church's general order. The ancient legal adage is applicable to canon law: Non ex regula ius sumatur sed ex iure quod est, regula fiat.54It is even possible that this definition has influenced the usage which eventually restricted the term to disciplinary rulings of church authorities.55 The application of analogy to the canons is nonetheless delicate; it supposes that the canon in question is perfectly clear.56 Moreover, the similarity of each case must be solidly grounded. We must correctly avoid any subjectivism which in a particular case argues on the basis of superficial resemblances.57 Therefore, an analogical interpretation, also called “extensive,” is not arbitrary as long as it conforms to the general intention of the legislator, even if that interpretation materially goes beyond his thought.58
In what measure can we categorically affirm that an ancient canon ought no longer to be applied? In principle, such is the case when a disciplinary measure has been abrogated or modified by a canon adopted in some later time; this is in line with the adage lex posterior derogat priori, which assumes that the conciliar authority issuing the abrogation or modification possess the necessary authority.59 It is still necessary to take into account the reasons underlying the more recent canon. Thus, canon 8 of the Synod in Trullo begins by recalling the norm which requires semiannual synods in each province. However, in the face of a practical impossibility (άδυνάτως), such as barbarian invasions, the Fathers of the Synod in Trullo decided in favor of a single annual session.60 It is clear that the meeting of semiannual synods is still preferred and must be held unless there are major obstacles.61
An ancient canon can partially or fully lose its legal force; partially when it is only capable of being applied analogically62 or else when an ecclesiological principle is decreed on the occasion of a strictly limited decision.63
Let us also note although “economy” excludes by nature an automatic application of analogy, a canon concerning an individual case can serve as an indication to help resolve comparable cases.64 It would appear logical to allow without restriction the principle that abrogates a canon when its ratio legis disappears; that is, the reason which prompted its adoption in the first place. But a long tradition expressing a consensus in the Church can block the application of this principle. Thus the first place of the See of Constantinople is not really in question even though this city has long since ceased to be “honored by the presence of the emperor and the senate.”65 In reality, the primacy of honor of the Archbishop of Constantinople is most probably founded on the extension to his see of the axiom applied by the Fathers of Nicea to the privileges of Rome, Alexandria and Antioch: “Let the ancient customs be maintained.”66 Total nullity is certain when a canon shows itself to apply only to a specific case and not capable of being extended by an analogical interpretation.67 Nullity can result automatically from the disappearance of an institution: thus canon 15 of Chalcedon which fixes the minimum age of forty for deaconesses lost its force after the Church ceased to ordain deaconesses.68
Investigation into the meaning and extent of a canon requires, as we have said above, research into the social and historical background as well as an analysis of the texts themselves. It is very evident that these exegetical studies suppose previous enquiries into the value of the texts which we have received through time. In this case, when dealing with the canonical stipulations of the first four ecumenical councils the investigator does not run up against insurmountable obstacles. These texts have on the whole been rather faithfully transmitted in the Greek manuscript tradition. This is true first of all due to the nature of the subject. As P.P. Joannou pertinently noted:
The letter of a legal text is of prime importance; it is quite normal, therefore, in the innumerable manuscripts of these canonical collections to find a very careful transcription which has been done by a copyist familiar with the material or else reviewed and corrected by a jurist. From one manuscript to another, we can expect to find very few variants that deeply alter the sense of the text.69
Let us add that the ancient canons and especially those of the ecumenical councils were considered to have been issued under divine inspiration, which explains the great care taken to preserve the exactness of the texts.70
From the beginning of this century on, a remarkable job has been carried out in establishing a critical edition of ancient canonical collections. It is, of course, these works that we have primarily used in our research. We must first mention the excellent editions of the Synagoge and of the Syntagma in XIV Titles done by V.N. Benesevic.71 For the disciplinary ruling issued by the Councils of Ephesus and Chalcedon, we also have the monumental work of Edward Schwartz.72 With certain exceptions, the Greek text of the canons of the first four ecumenical councils found in Fonti is that of the Synagoge, sometimes with some interesting variants; it is nonetheless difficult to appreciate their importance because of deficiencies in the way the critical apparatus is set out.73 The old Latin versions of the canons, above all those of Nicea I, are worthy of careful consideration. Certain ones in fact show signs of being based on a Greek text earlier than those which have come down to us. At least in the one case, the old Latin text allows us to reconstruct with near certainty the original form of the canon and to understand the mens legislatoris.14We can also add that the old Latin versions have an interest all their own. The variety of Latin translations of Greek terms found in these versions calls for theological reflection.75 Moreover, certain interpretive translations, indeed additions, constitute precious testimony to the history of Church institutions in the West.76 The research of Strewe77 and, above all, the work of Turner,78 as complete as it is serious, give the scholar access to correctly edited Latin texts. The Syriac translation of the canons done at Hierapolis of Euphratesia (500-501) is far from being as interesting as the old Latin versions. It is in fact very close to the oldest Greek editions we have. At the most, when a variant is found simultaneously in this Syriac version and in the Latin translations of Dionysius Exiguus, we can infer that it must reflect the text of the Antiochian Graeca auctoritas. The critical edition of the manuscript containing the Syriac translation mentioned above has been published by F. Schulthess.79
We have already drawn attention to the work of Stephen of Ephesus, the Synopsis, edited by Aristenos and completed by Symeon the Logothete. No critical edition of this Epitome canonum exists; we have, therefore, used the work of Rhalles and Potles. We have done the same for the commentaries of Aristenos, Zonaras, and Bal-samon.80 For the anonymous scholia, we have used the publication of V.N. Benesevic.8'
Archbishop Peter L’Huillier