On the Flexibility of Canon Law
In this modern age of online media it is easy to hear many viewpoints on a topic in a single day. In the Orthodox World the most common term to hear is “but that is against the Canons” and it is usually heard in relation to a number of topics. What constitutes something being “against the Canons” depends on many factors, the most important of these being the definition, nature and authority of the Canons in the Orthodox Tradition.
The nature of the Canons, in itself, raises many questions on the role of the Canons to the Church in the East in comparison to the West. The issue of the compilation and authority of certain canons is one which needs to be approached in detail if we are to accept them as a set text and it also raises questions as to what happens in cases of contradictions between certain fathers and councils, and which takes priority in such situations.
To properly assess the issues which arise in approaching Canon Law in this way the Canonist needs to look into many aspects of Canon Law. They include the issue of legalistic approaches to Orthodox Christianity, the very nature of authority in Orthodox Tradition and the question of contradiction and cultural impact on Orthodox Christianity in the modern world. These will be important when assessing the view of the Canons as unchangeable.
Are Canon Laws an unchangeable set of Laws?
When looking at this Judicial and unchangeable approach to the Canons we need to understand the approach it is taken from. This view of the Canons most resembles what is commonly called the Juridicial-Scientific approach to Canon Law. The Juridicial-Scientific approach is the most common view but has the weakness of being extremely out of line with Traditional views of Canon Law in Orthodoxy. John Erikson, in his work The Challenge of our Past, warns of the legalistic and stagnant approach to Orthodox Canon Law. He claims that it is “subtly but surely reducing the Church to a mere institution” through a distinct “misunderstanding of what the Canons of the Church are.” This opinion is also supported by the current Ecumenical Patriarch of Constantinople, who once referred to the Codification of Orthodox Canon Law as turning Canon Law into “an Idol for foolish Worship”
The first major problem with this approach is that it takes the approach that there is a singular body of Scripture which the Church sees as infallible and a legalistic text. Though the Church sees Canons, especially those of the Ecumenical Councils, as being vital in Orthodox Tradition, to say that they are unchangeable takes them out of context and effectively this vast collection of texts something they are not; a singular Codified legal set of laws. Moreover, the Canons actively demonstrate disagreement as to the severity and expected response to some matters, leaving their application to interpretation rather than a judicial review.
Christos Yannaras, when speaking about the idea of codifying the canons, speaks of the idea of the Canons being legalistic in nature as having “consequences diametrically opposed to those intended by the life of the Church,” comparing the legalistic view of the Canons as comparable to the parable of the Pharisee and the Publican. Though speaking on the legal codification specifically, Yannaras raises an interesting problem here which brings to mind Christ’s statement that “The Sabbath was made for man, not man for the Sabbath” since this approach can lead to a dangerous assumption that the importance of the Canons overshadows the importance of man’s salvation and the Church’s responsibility and role in this.
Others such as Metropolitan Panteleimon of Tyroloe and Serention would look at the legal aspect of the Canons as important. In his overview of Orthodox Canon Law Metropolitan Panteleimon states that “any system of Canon Law is founded on two basic concepts; that of the Church, on the one hand, and of law, on the other.” In his approach to Canon Law, “The Church aims at it’s basic goal, that is the Salvation of people and the world, also through the Sacred Canons and other ordinances” seeing Canon Law as a Science of both Theology and Law.
Though there are many problems with this legalistic approach to the Church, it also has its benefits. One of these is that it safeguards Orthodoxy in a time of cultural innovation in many Christian communities. It is also far more accessible for the Orthodox community and compatible with modern legalistic thinking. This will generally make the approach to the Canons as a legal and judicial text one which appeals to many Orthodox Christians.
Whilst this approach is an appealing and practical one, the issue is its compatibility with the Tradition of the Church. The Church has traditionally seen the Canons as there to assist in guiding the people to Salvation and not as unchangeable strict laws, otherwise there is no demonstration of compassion for us of Oikonomia to allow for circumstance or for the sake of the sinner.
One example of this is the discussion of the Orthodox Church in relation with other Christian communities. Canonically, many would argue that there should be no prayer or recognition of the validity of other communities, since this is supported by the Canons of various Councils and Synods (Laodicea: XXXIII, IX, Apostolic Canon LXV). Though a supporter of the absolute authority of the Canons would be following the canons to refuse to see in prayer with non-Orthodox as an excommunicable offence, clearly citing Laodicea XXXIII’s statement that “None shall join in prayers with heretics or Schismatics” many Orthodox thinkers see it as important to admit that “it is impossible to state or discern the true limits of the Church simply by canonical signs or marks.” and would see that the issue of just how inflexible and unchangeable the Canons are has many aspects to it.
The Canons and Time
The idea of the Canons changing or taking new form over time can cause many tensions in the Orthodox community though it is not a new concept. In reading the Canons of such Fathers as St Basil you can see how the Christian Community and even its Hierarchs have changed or ignored its own Canon Laws many times when they have seemed to hinder the progress and ability of the Christian community to cope with changes in situation which occur as society as a whole transforms.
A key example of this is St Basil’s 13th Canon which states “Our fathers did not think that killing in war was murder, yet I think it advisable for such as those guilty of it to forebear communion three years.” This demonstrates a clear view that soldiers should not receive communion as they have killed. In the strict sense of an unchangeable Canonical system this would be enforced amongst clergy today though the common role of Orthodox Military Chaplains in communing troops during times of war illustrates that this Canon is seen as obsolete or at least ignored by the Orthodox community today.
This change of view when it comes to the morality of military service amongst the Orthodox is not something sudden. Over the last thousand years the Canons pertaining to this have been contravened or even ignored due to the political or military situation of the Byzantine Empire and subsequent nations afterwards. An example given of this by Stanley Harakas is the institution of Apostolic Canon 83.
The Canon states that “If a Bishop, presbyter or deacon shall serve in the army, and wishes to retain both the Roman Magistracy and priestly office, let him be deposed, for the things of Caesar belong to Caesar and those of God to God.”
Harakas, when looking at this Canon, explains an incident mentioned by the Canonist Balsamon who tells of some priests who had been caught up in battle and killed some men. If the Apostolic Canons were absolute they would have been expected to have been defrocked as per the Canon, yet the incident played out far differently:
“Some of these Priests were brought before a Synod of Bishops. Certain of the Bishops charged the priests with murder and asked that they be defrocked and prohibiting from functioning as priests, as their actions sullied the purity of their priesthood. However the majority of the Bishops at the Synod responded differently. Given the circumstances of the case, though they deplored the fact that the killings had taken place, they judged the priests’ acts as- if not right- at least unavoidable and therefore voted that they were not to be defrocked.”
This incident demonstrates the flexibility of the Canons in the 12th Century and the acceptance that they can be regarded as changeable in their validity based on the situation and context. This said, this example does not demonstrate the removal of Canons or labelling of them as invalid, it simply implies a view of the Canons as relate in their applicability and less absolute than statements such as “The canons are sacred, and therefore unchangeable” would imply.
Along with the flexibility in the extent to which the Canons were applied, especially through such concepts as Oikonomia, has been witnessed throughout the Church’s history of Penitential acts. Aspects of the Penitential and remedial practices in response to the Canons themselves have also changed. When introducing this topic, John Erikson states that “no other Sacramental act of the Church has undergone such extensive developments and changes in its outward forms” as Penitence, pointing out that even now there are various forms of the Penitential Rite being practiced in the Orthodox Church, something which we do not see with other Sacraments.
Dr. Lewis Patsavos, talking about modern Penitential Disciplines states that “acts of penance must not be confused with punishment in the sense of retribution for evil committed. They must not have any element of vindictive punishment about them.” Though the Church has always allowed for Oikonomia in penitential discipline, we see the canons of the fathers and councils giving specific durations of penitential practice. From a judicial sense, the view of the Canons as unchangeable runs the risk of contravening this warning and thus, as previously mentioned, going against the Church’s natural role and development.
This advice on the application of the Canons says a lot about the change in the developments and changes in the way the Canons themselves are viewed and responded to as the response to them being broken has adapted in line with this. Nicholas Afanasiev uses the example of the receiving of the lapsed to illustrate this point. He says that when we compare the modern Church with the Canons of the Councils concerning their receiving we find that “all the decisions concerning the receiving of the lapsed into the Church or those relating to the penitential discipline and institutions that have disappeared or that have been replaced by others,” so the modern Church has changed to suit the times and circumstances we find ourselves in now.
Afanasiev goes as far as to state if we were to look only at the “decrees of the councils and the Holy Fathers” for guidance “then we will find a series of canons completely inapplicable to our present Church life.” This again illustrates the need for flexibility in interpreting the Canons for the modern Orthodox community.
The Canons, interpretation and contradiction
A third problem which the claim that the canons are inflexible would come across would be the common contradiction of Orthodox Canons and their application. This is a natural occurrence in Canon Law since the Canons are not a singular entity written a the same time but a collection of Ecclesiastical Laws from across the Christian world and collated over a period spanning hundreds of years.
In the modern world the issue of Canonical clashes is widespread, especially since the establishment of national Orthodox Churches and emergence of autocephaly. Amongst these separate Churches with their own codes of Canon Law and interpretations of the Canons we see many crises occur. The first of these is the very existence of many autocephalous Churches. Erikson explains this in reference to the Orthodox Church in America, which developed from the Russian Orthodox missions in the USA and granted autocephaly by the Moscow Patriarchate. Erikson points out the issue, stating how:
“According to the Russian Church, any autocephalous church has the right to grant canonical independence to one of its parts. According to Constantinople, on the other hand, only an Ecumenical Council can definitively establish an autocephalous church and any interim arrangements depend upon approbation by Constantinople, acting in its capacity as the ‘mother church’ and ‘first among equals.’”
When we look at this with reference to the Canons of the Councils we see this as a clash of Interpretations of Canon 2 of the Second Ecumenical Council and Canon 28 of the Council at Chalcedon. The Second Canon says “Let the bishops refrain from interfering in churches outside the limits of a diocese and from causing trouble in the churches …” giving a clear indication of independence of matters for each diocese. The Canon ends by clarifying matters outside of these Dioceses by explaining that “Concerning the Church of God amongst the Barbarian nations. It is important that they be administered by the custom established in the time of the fathers.”
In 451, The Council of Chalcedon expanded the lands in which Constantinople vastly, including the lands of the barbarians. The Canon says “The Metropolitans and they alone of the Dioceses of Pontus, Asia and Thrace, as well as the Bishops among the Barbarians of the aforementioned Dioceses, are to be ordained under the previously mentioned very Holy Church of Constantinople.”
According to Balsamon, in his commentaries on Canon 2 of the Second Ecumenical Council, “Formerly all of the Metropolitans of provinces were themselves the heads of their own provinces and were ordained by their synods, but all this was changed by Canon XXVII of the Synod of Constantinople, which directs that the Metropolitans of Pontus, Asia and Thrace, and certain others which are mentioned in this Canon should be ordained by the Patriarch of Constantinople and should be subject to him.”
For any Orthodox Clergy looking at the Church’s approach to the issue of Patriarchal jurisdiction, the first logical step in dealing with this issue would be to look to the Canons for guidance. The problem this presents, as previously mentioned, is that the Canons themselves do not add up to a codified legal system and still require interpretation and an essence of personal choice in what applies where. Unlike in the Roman system, the Orthodox Canon Laws do not hold place as a universal or judicial form of law, especially in this day of national Churches.
Here we see the issue of the Russian interpretation of the Canon against that of the Ecumenical Patriarch. When looking at the American autocephaly situation, Archbishop Peter L’Huillier referred to the two viewpoints as “completely irreconcilable, more especially as each side considers its position, as it were, strongly based on an existing norm.” This existing separation of norms with regards to the Canons again demonstrates a lack of rigidity when it comes to the application of the Canons in the Church today. The Canons used in the debate themselves are still there but the way in which they are interpreted by Moscow and Constantinople have gradually changed.
The Canons, the Church and Universality
A further demonstration of lack of universality is with regards to the application of the Canons in the modern Church is with regards to the relationship between Orthodox communions. Since the release of the Joint Statements in 1989 and 1990 which declared a shared Orthodoxy between the Eastern and Oriental Orthodox communities, there has been a shift in the recognition of the Orthodoxy of Non-Chalcedonians in the Eastern Orthodox community in places where the two communities interact on a regular basis. Within the Antiochian and Alexandrian communities there has been a decisive shift towards sharing of Sacraments with the Coptic and Syriac communities, which contravenes the 33rd Canon of Laodicea which explicitly condemns prayer with schismatics.
In 2001 the Greek and Coptic Patriarchs of Alexandria signed a Pastoral agreement allowing for mixed marriages between Coptic and Greek Alexandrian Christians. The Statement announced that “The Holy Synods of both Patriarchates have agreed to accept the sacrament of marriage which is conducted in either Church with the condition that it is conducted for two partners not belonging to the same Patriarchate of the other Church from their origin” This also allowed that “Each of the two Patriarchates shall also accept to perform all of its other sacraments to that new family of Mixed Christian Marriage.”
The same has also began to occur with Antiochian/Syriac relations in Syria where the 1991 Statement of the Orthodox Church of Antioch on the Theological Dialogue issued A Patriarchal letter on relations between what Patriarch Ignatius IV referred to as the Sister Churches of Antioch. This letter listed the decisions made by the Antiochian Synod in response to recent dialogue between the two communities. One of these recommendations stated that “In localities where there is only one priest, from either Church, he will celebrate services for the faithful of both Churches, including the Divine Liturgy, pastoral duties, and Holy Matrimony.” Though it does not state any allowance for intercommunion the demonstration of the sharing of the Sacrament of Holy Matrimony shows a willingness to share sacramental life in the Church regardless of the existence of Anathemas and schism between the two communities.
As well as Laodicea’s 33rd Canon, we see the 32nd Canon of the same Council state that “It is unlawful to receive the Eulogiae of Heretics,” so from the viewpoint of immovable and unchangeable Canons a Priest who communes someone from a community which is in Schism would be liable for defrocking or some severe form of penitence, as the 45th Apostolic Canon suggests any Priest or Bishop who even prays with heretics be excommunicated or deposed.
The problem with this approach is that it does not allow for changes in relationship amongst certain communities or interpretation of heresy and inter-community relations. Based on the work of commissions and statements released, many within the Eastern Orthodox community in these areas would see the Non-Chalcedonians as Orthodox in their Theology, though others with less interaction may not, thus leading to the view that these pastoral agreements are going against the Canons.
The same can be applied to relations with Western Churches where there are many arguments over the validity of Sacraments outside of the Orthodox Church. Depending on recognition of the Sacraments of another Christian community, the Canons around participation in them and the limits of the Church can be reinterpreted, leading again to a change in the meaning and application of the Canon rather than a change in the Canon itself.
The mindset of a singular judicial or legalistic text of Canon Law in Orthodoxy has many issues, being based on a starting point which is inapplicable in Orthodox Ecclesiology and History. Regardless of this, the Canons themselves will commonly be used and referred to in discussions by people from all camps when discussing behaviour in the Church, it is simply their interpretation in light of the community and time which will cause any change in their application.
Many examples of their changing interpretation and application have been demonstrated in the Church, from the commentaries written in the middle ages to their differing in application in the modern National Orthodox Churches and their own constitutions. These variances open up an ecclesiological quagmire where the Canons are still in existence and kept Sacred, yet their meaning and interpretation is allowed to vary at the digression of the community seeking their guidance.
In conclusion, the belief in an Absolute and inflexible system of Orthodox Canon Law encounters many issues when put into practice. These come from varying factors such as the geographical or socio-political context of their application and even from the very nature of the Orthodox Canons. The Canons themselves were not created as a singular form but arose over time and in response to the struggles facing the community and Church as a whole.
By this very fact, we can see expansion of the Canons through time, with them having no codified structure from the start but a fluid development and variance in application. Though the many problems listed in the essay above have an impact on the general view of the Canons and their rigidity in practice, it is the approach and application and interpretation to the Canons rather than the Canons themselves which are most likely to be seen as changeable.
So in one way, following an absolute approach to the Canons is correct since the Canons themselves are sacred and not seen as changeable, yet various demonstrations of variance in their application and interpretation shows a clear separation between the concept of them being unchangeable due to their role in Tradition and their role as a judicial device.
Subdeacon Daniel Malyon
Afanasiev, N, (1967), “The Canons of the Church: Changeable or Unchangeable?” St. Vladimir’s Seminary Quarterly 11, 54-68; Allen, J, (1981) Orthodox Synthesis: The Unity of Theological Thought, Saint Vladimir’s Seminary Press; Archondonis, B, (1973),“A Common Code for the Orthodox Churches,” Kanon I, pp. 45 -53; Erikson, J, (1991), The Challenge of our Past, Saint Vladimir’s Seminary press; Florovsky. G, (1933), ‘The Limits of the Church’ Church Quarterly Review, 1, 117-131; L’Huillier, P, (1993), Accession to Autocephaly, St. Vladimir’s Seminary Quarterly 37, 267-304; L’Huiller P, (2000), The Church of the Ancient Councils, Saint Vladimir’s Seminary Press; Rodopoulos. Dr P, (2007) An overview of Orthodox Canon Law, Orthodox Research Institute; Schaff. P, (2012), A select library of Nicene and Post-Nicene Fathers of the Christian Church: Second Series: Vol.14, Forgotten Books; Yannaras. C, (1985), The Freedom of Morality, Saint Vladimir’s Seminary Press; The Holy Bible, New International Version, Mark II: 27.
Pastoral Agreement between the Coptic Orthodox and Greek Orthodox Patriarchates of Alexandria, found on http://www.orthodoxunity.org/state05.php (Accessed 19/12/2012)
On the Relations between the Eastern and SyrianOrthodoxChurches, November 1991, http://www.orthodoxunity.org/state13.php (Accessed 19/12/2012)
The Theological Basis for the Church’s Law, Greek Archdiocese of America, http://www.goarch.org/ourfaith/ourfaith7071 (Accessed 18/12/2012).
 Erikson,1991, 9.
 Ibid, 9
 Archondonis, 1973, 45-53.
 Yannaras. 1985, 89.
 Mark II: 27 (NIV).
 Rodopoulos, 2007, 3.
 Ibid, 3.
 Schaff. 2012, 149.
 Florovsky, 1933, 117-131.
 Schaff. 2012, 605.
 Ibid, 599.
 Harakas, 1981, 86.
 Erikson, 1991, 23.
 Afanasiev, 1967, 62.
 Ibid, 62.
 Ibid, 62.
 Erikson, 1991, 91.
 L’Huiller, 2000, 115.
 Ibid, 115.
 Ibid, 268.
 Schaff, 2012, 117.
 L’Huillier, 2000, 296.
Schaff, 2012, 149.