Canon Law

Introduction

In Western culture, canon law is the law of the Roman Catholic and Anglican churches. The Eastern Orthodox concept of canon law is similar to but not identical to the more legislative and juridical model of the West. Canon is derived from the Greek kanon, i.e. a rule or practical direction, a term which soon acquired an exclusively ecclesiastical signification. In the fourth century it was applied to the ordinances of the councils, and thus contrasted with the Greek word nomoi, the ordinances of the civil authorities; the compound word “Nomocanon” was given to those collections of regulations in which the laws formulated by the two authorities on ecclesiastical matters were to be found side by side.

Branches of Canon Law

Canon law may be divided into various branches, depending on the points of view adopted:

  • If we consider the source of the law, it comprises Divine Law, including Natural Law, based on the nature of things and on the constitution given by Jesus Christ to His Church; and Human or Positive law, formulated by the legislator, in conformity with the Divine law.
  • If we consider the form of the law, we have the Written Law (jus scriptum) comprising the laws promulgated by the competent authorities, and the Unwritten Law (jus non scripture), or even Customary Law, resulting from practice and custom; the latter however became less important as the written law developed.
  • If we consider the subject matter of the law, we have the Public Law (jus publicum) and Private Law (jus privatum). This division is explained in two different ways by the different schools of writers.
    • For most of the adherents of the Roman school, public law is the law of the Church as a perfect society, and even as a perfect society such as it has been established by its Divine founder: private law would therefore embrace all the regulations of the ecclesiastical authorities concerning the internal organisation of that society, the functions of its ministers, the rights and duties of its members. Thus understood, the public ecclesiastical law would be derived almost exclusively from Divine and Natural law.
    • On the other hand, most of the adherents of the German school, define public law as the body of laws determining the rights and duties of those invested with ecclesiastical authority, whereas private law is that which sets forth the rights and duties of individuals as such. Public law would, therefore, directly intend the welfare of society as such, and indirectly that of its members; while private law would look primarily to the wellbeing of the individual and secondarily to that of the community.

    Public law is divided into external law (jus externum) and internal law (jus internum). External law determines the relations of ecclesiastical society with other societies. either secular bodies (the relations therefore of the Church and the State) or religious bodies, that is, interconfessional relations. Internal law is concerned with the constitution of the Church and the relations subsisting between the lawfully constituted authorities and their subjects.

  • If we consider the expression of the law, canon law may be divided into several branches, so closely allied, that the terms used to designate them are often employed almost indifferently: common law and special law; universal law and particular law; general law and singular law (jus commune et speciale; jus universale et particulare; jus generale et singulare). It is easy to point out the difference between them: the idea is that of a wider or a more limited scope; to be more precise, common law refers to things, universal law to territories, general law to persons; so regulations affecting only certain things, certain territories, certain classes of persons, being a restriction or an addition, constitute special, particular, or singular law, and even local or individual law. This exceptional law is often referred to as a privilege (privilegium, lex privata), though the expression is applied more usually to concessions made to an individual. The common law, therefore, is that which is to be observed with regard to a certain matter, unless the legislator has foreseen or granted exceptions; for instance, the laws regulating benefices contain special provisions for benefices subject to the right of patronage. Universal law is that which is promulgated for the whole Church; but different countries and different dioceses may have local laws limiting the application of the former and even derogating from it. Finally, different classes of persons, the clergy, religious orders, etc., have their own laws which are superadded to the general law.
  • If we consider the churches that practice canon law, we have to distinguish between the law of the Western or Latin Church, and the law of the Eastern Churches, and of each of them. Likewise, between the law of the Catholic Church and those of the non-Catholic Christian Churches or confessions, the Anglican Church and the various Eastern Orthodox Churches.
  • Finally, if we look to the history or chronological evolution of canon law, we find three epochs: (a) from the beginning to the “Decretum” of Gratian exclusively; (b) from Gratian to the Council of Trent; (c) from the Council of Trent to our day. The law of these three periods is referred to respectively as the ancient, the new, and the recent law (jus antiquum, novum, novissimum), though some writers prefer to speak of the ancient law, the law of the Middle Ages , and the modern law.

Anglican Canon Law

In the official Church of England, the ecclesiastical courts that formerly decided many matters such as disputes relating to marriage still have jurisdiction of certain church-related matters; their jurisdiction dates back to the middle ages. In contrast to the other courts of England the law used in ecclesiastical matters is a civil law system, not common law.

Roman Catholic Canon Law

In the Roman Catholic church, the canons of the councils were supplemented with decrees of the Popes, which were gathered together into collections called decretals.

In the 20th century, the Roman Catholic Church began attempting to codify canon law, which two millennia of development had become a complex and difficult system of interpretation and cross-referencing. The first code of canon law was published in 1917. A revised code, the Codex Iuris Canonici (Code of Canon Law, CIC) was published in 1983. Canon law within the Catholic Church is a fully developed legal system, with all the familiar trappings of courts (including lawyers); the highest degree of education in canon law is the J.C.D. (Juris Canonis Doctor, Doctor of Canon Law).

Eastern Catholic Church

The Eastern Catholic Churches have a separate code of canon law. The first attempt to codify Eastern law under the name Codex Iuris Canonici Orientalis (Code of Eastern Canon Law) was partially completed when Pope Pius XII promulgated portions of the canons in 1948. However, when the project neared completion in 1959, Pope John XXIII suspended work as the expected conciliar reforms would affect the code. The Codex Canonum Ecclesiarum Orientalium (Code of Canons of the Eastern Churches, CCEO) was promulgated in November 1990. The majority of canons correspond closely to the Roman code, but incorporates certain differences in the hierarchy, administration and other areas.

Orthodox Christian Church

The Orthodox Christian tradition is generally much less legalistic, and treats many of the canons more as guidelines than as absolute 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). Greek-speaking Orthodox have collected canons and commentary upon them in a work known as the Pedalion/Πεδαλιον (rudder–so called because it is meant to “steer” the Church). However, this is not a codification, but simply a compilation of one tradition of interpretation of the canons.

The text of the Code of Canon Law can be found in the Vatican Website.