Canon Law Research Articles

Նիկիայի Բ Տիեզերաժողովի (787 թ․) կանոնները. Միջնադարյան հայերեն թարգմանությունը՝ հունարեն բնագրի հետ զուգորդմամբ

The Second Council of Nicaea, which was held in 787 and recognized by the Orthodox Churches that followed the Byzantine tradition and the Western Church (the Roman Catholic and Protestant Churches separated from it) as the Seventh "Ecumenical Council", is of great significance to the history of the church, not only in terms of the study of the dispute over the treatment of images but also from the point of view of the study of issues of canon law and church administration. The 22 canons promulgated by the Council were strictly administrative and prescriptive in nature compared to the canons of previously held Councils. Most likely, this was connected with the desire to restore the ecclesiastical order shaken by the disputes over the images and after them. Therefore, the respective study of the canons of the Second Council of Nicaea seems important, first of all, from the point of view of canon law. This study aims to publish an Armenian translation of the canons of the Council of Nicaea of 787, most probably made in the 13th–14th centuries, along with the Greek original. Such research is relevant not only as a disclosure of the previously unpublished original Armenian text of the canons, but also in the context of clarifying various canonical-legal and administrative concepts of the church and the study of church Councils.

Bishops, Canon Law and Governance in Tenth-Century England: the Constitutiones of Oda of Canterbury

This article challenges the view that canon law was insignificant in the development of tenth-century English administrative and judicial institutions through a new study of Oda of Canterbury's Constitutiones, an important but neglected episcopal capitulary. Particular attention is paid to Oda's sources, the text's place in the legislative programme of King Edmund and the influence of wider European approaches to episcopal justice. The article shows that Oda's statutes endorsed an emerging system of collaborative justice between secular and ecclesiastical elites, thus demonstrating that tenth-century English governance was informed by a wider range of normative legal traditions than usually thought.

Examinations for Vicars in the Diocese of Tarnów Between 1918 and 1939

Since its inception, the Church has paid great attention to the intellectual formation of the clergy. After the reception of the Sacrament of Holy Orders, for the pastoral and intellectual formation of the clergy of the Diocese of Tarnów between 1918 and 1939, theological examinations were of vital importance and they were carried out in accordance with the dispositions of the universal legislator contained in the 1917 Code of Canon Law in Canon 130. In the period under discussion, examinations for vicars were held in August in the auditorium of the Theological Seminary in Tarnów. The examination material included dogmatic theology, moral theology, pastoral theology and canon law. This study is a contribution to the history of canon law, as the development of the institution of examinations for vicars in the Diocese of Tarnów between 1918 and 1939 has not yet been studied.

François Hotman and the Critique of Gratian’s Decree: From the Investigation of Early Councils (De statu primitivae Ecclesiae, 1553) to the Rewriting of Europe’s Legal History (Antitribonian, 1567)

François Hotman (1524–1590) was one of the leading Reformed jurisconsults of his time. Past research has stressed his innovative interpretations and practices in the study of Roman, feudal, and French constitutional law. Little has yet been said about his views on canon law, another fundamental legal body in Western history that experienced renewed intellectual scrutiny during the sixteenth century. This paper investigates some of Hotman’s early work on canon law, focusing on his legal–historical reconstruction of the early Church in De statu primitivae Ecclesiae (1553) and his contribution to a budding historical field in Catholic circles: conciliar history. Despite the general lack of interest in the history of councils on the part of some leading Protestant theologians (Luther, Calvin, Bullinger), Hotman clearly believed that the textual tradition of councils provided a prime example of sustained popish efforts to control and deform the historical narrative and the legal structure of the Church. Yet, although he seems to have worked on demonstrating just that over more than forty years, he never again voiced his views on the matter in a dedicated work. Comparing in its conclusion De statu primitivae Ecclesiae with Antitribonian, this paper suggests that, in parallel to his better known ‘complex of Tribonian’ (Pierre Mesnard), Hotman seems to have suffered from a ‘complex of Gratian’: the doctrinal unity and institutional accomplishments of the early Church, as represented by the first councils, may well have dazzled Hotman and kept him from writing some definitive work against Gratian.

Secularization: A Response from Canon Law Based on the Concept of the “Church on the Move” and Cooperation with the Civil Order in Cases of Abuse of Minors by Priests

The influence of secularization and secularism in today’s society has led to a process of privatization of religion. Faced with this reality, Pope Francis, in his Apostolic Exhortation Evangelii gaudium, has promoted the need for a pastoral conversion, betting on a “Church going out” that, on the one hand, can cope with this process and, on the other hand, go out to meet all those people who suffer in the existential peripheries. The aim of this paper is to demonstrate, through a qualitative and quantitative methodology, how canon law is a reality that cannot stand aside from this call and how, in the specific area of child abuse within the Church, it must opt for a position that we call “expansion” or extra ecclesiam, capable of recognizing and dealing with the cases that have occurred, as well as operating a system of cooperation with the civil order, with the aim of promoting justice and the common good of society, in order to limit the growing process of secularization.

Procedimento come principio inespresso. Proceeding as an Unexpressed Principle

This paper discusses the possibility pertaining to the field of a new principle of law theorised, according to the communion ecclesiology issued by the Second Vatican Council. By considering the accurate proceeding disposition, the author accepts that a new principle constitutes necessary rules for the correct functioning of the canon law system and, as such, are inducted from the legal reasoning of those entitled to take legal decisions in the process of applying the law, especially the judiciary. Furthermore, it could constitute an integrative tool of the entire legal system. Such a new principle is understood to be of great value, because of the significant role assigned to principles in the theory of law in general. In every case, a new principle evokes by, and alludes to, values that govern the entire canon law science.

Ökumenisches Kirchenrecht im Zerrbild historiographischer Erzählung

Abstract The Quinisext Council, assembled in Constantinople shortly after 690 to issue a series of more than 100 canons on practical issues and on clerical discipline, was designed as an Ecumenical council, but failed to gain ‘universal’ acceptance in the West. Moving beyond traditional interpretations which saw the conflict over the Quinisext Council largely as one between Emperor Justinian II in Constantinople and the papacy in Rome, the article asks how issues related to the Quinisext Council were received in the churches of the Exarchate of Ravenna and the Lombard, Visigothic, Frankish and Anglo-Saxon kingdoms. Drawing on accounts in Paulus Diaconus’ ‘History of the Lombards’, the ‘Chronicle of Alfons III’ ( of Asturia ) and Agnellus’ ‘Book of Pontiffs of the Church of Ravenna’, it is argued that there must have been a much wider debate about the Quinisext canons on celibacy and on chastity of clerics. As is shown by the analysis of these sources, some of the Quinisext canons on these topics were accepted in the exarchate of Ravenna, the Lombard kingdom of Italy and the Visigothic kingdom in Spain and Southern Gaul around 700; only when attitudes changed profoundly after the mid-eighth century, the acceptance of the council’s decisions by rulers and bishops became subject to polemical narratives in later historiography. By contrast, a case can be made on the basis of synodal decisions, canon law, hagiographical texts, theological treatises and chronicles that in the Frankish and Anglo-Saxon kingdoms, the Quinisext canons on clerical marriage were refuted by bishops, who confirmed older positions on the debated issues as transmitted through canon law tradition. Asking what may have caused both the acceptance and rejection of the Council’s decisions and revisiting the development of the papacy’s attitude to the Quinisext canons, it is argued here that juxtapositions and a priori-statements on religious culture in ‘East’ and ‘West’ are not helpful to understand the wide-ranging connectivity and communication that becomes visible from this debate. A Mediterranean perspective that fully embraces the world of the post-Roman ‘West’ including Britain does more justice to the openness of historical processes around 700.

Nicholas of Cusa’s Idea of a “Just War”

Although Nicholas of Cusa (1401–1464) does not explicitly speak about “just war” in his writings, the third book of his most important political work, The Catholic Concordance (De Concordantia Catholica), contains several text passages on feuds that reveal his idea of a “just war.” As a doctor of canon law, Cusanus rejected all kinds of feuds which often led to private wars among nobles. He saw the rampant feuds as a major reason for the decline and destabilization of the Holy Roman Empire. His idea of a “just war” is influenced primarily by many canonistic and moral-theological writings, especially the ideas of Thomas Aquinas in his Summa Theologiae. For Nicholas of Cusa war and violence are only justified under certain circumstances: if they are authorized by the emperor as supreme ruler or by the imperial courts, when there is a just cause, such as defence against external and internal enemies, and when they are done with the right intention, such as the restoration of peace.

The Offence of Abduction in Canon Law and Kidnapping in Polish Penal Law—Selected Issues

The article examines the issue of abduction and kidnapping in the modern world. This issue is analyzed in two legal systems: the canon law of the Latin Rite Catholic Church and Polish penal law. The choice of these two systems aims to highlight the consistency in understanding and penalizing the offence of abduction (kidnapping). A mixed-method approach, incorporating both analysis and synthesis, is employed in this study. The analysis is comprehensive and multifaceted, while the synthesis aids in organizing and integrating the findings on this topic.

The Validity Of Divorce Judgments By The Court For Catholic Couples According To Canon Law

The Validity Of Divorce Judgments By The Court For Catholic Couples According To Canon Law

RELIGIOUS FREEDOM AND RELATIONS BETWEEN SPIRITUAL AND SECULAR AUTHORITIES IN THE CHRONICLE BY VINCENTIUS KADŁUBEK

ABSTRACT: Aim: The main research objective was to present the constitutional (state) thought in the light of „The Polish Chronicle” by Wincenty Kadłubek. The specific aim was to analyze the relationship between spiritual and secular power in the source. Methods: This article employed an analytical-synthetic method of subject literature supplemented by a historical-legal method. Results: The conclusions drawn from the research indicate that according to the chronicler, the beginning of the legal order of the state before the adoption of Christianity was established by Krak. On the other hand, the second beginning of the legal order falls during the reign of Bolesław the Brave. The foundations of law arise, on the one hand, from customary law, the reforming canon law, and the rediscovered Roman law. Conclusion: Master Wincenty introduces the term „Rzeczpospolita” as an order, a legal-public system. It is represented by centers of spiritual and state power and accepted by the population as just, defining its historical existence and remaining its common good. This chronicler speaks of the beginnings of Polish law in terms of state legislation and regulation of public order by the monarchy. For the first time, Wincenty Kadłubek's political-legal thought establishes the fundamental principles of popular sovereignty, where the source of power is the people conceived as the entirety of all citizens. Originality: The originality of the article is evidenced by the results of scientific research or conclusions drawn from information gathered in the form of a review of previously published works of one's own authorship and others of a theoretical or analytical nature on this issue. Keywords: The Polish Chronicle, Wincenty Kadłubek, religious freedom, power in the Middle Ages

John Paul II and Benedict XVI’s concern for the protection of the faithful against the most serious crimes, with particular emphasis on the sexual abuse of minors committed by clergy

The problem of dealing justly and efficiently with the most serious crimes in the Church after the promulgation of the Code of Canon Law in 1983 became the concern of Cardinal Joseph Ratzinger, later Benedict XVI, and John Paul II. Their cooperation and the decisions of Benedict XVI, as a continuation of the path started, laid the foundations for the creation of a system of canonical criminal law capable of responding properly and effectively to the most serious crimes committed by the faithful in the Church. The introduction of a clear scope of competence for the Congregation for the Doctrine of the Faith, the definition of a longer limitation period, the possibility of revoking it, the centralization of procedural steps, entrusting them to qualified personnel, enabling the control of the action of individual superiors are very concrete legal solutions that confirm the teaching of the Church and the definite statements of the two Popes on the protection of the most vulnerable in the Church from the immense harm of sexual abuse that some clerics could commit against them. The article presents and discusses concrete legal solutions and relates them with the teachings and attitudes of the two popes towards protecting minors in the Church. It is an attempt to argue for the defense of their good names and to oppose the unfounded accusations made against these two authorities.

Punishable Offenses Leading to the Loss of Clerical Status According to The Code of Canon Law Currently in Force

In this article, the author presents and analyses delicts threatened by the penalty of dismissal from the clerical state according to the Code of Canon Law currently in force. In the introductory section, the author defends the validity of examining this topic, due to the reform of criminal law carried out by Pope Francis with the apostolic constitutionPascite gregem Dei of 23rd May 2021. This reform expands the catalogue of crimes which are punishable with the lifelong expiatory penalty dimissio de statu clericali. The author also provides an understanding of the concept of crime in canon law, and then, in the main part of the study, he presents and discusses individual crimes in the order corresponding to their arrangement in the revised Book VI of the Code of Canon Law devoted to penal sanctions in the Church.

Possessory Remedies in Late Medieval Frisian Law Texts

Abstract This contribution examines possessory protection in Frisian law texts from the late Middle Ages. These sources show that such protection was an old and fundamental principle. The jurists associated it with the possessory remedies of learned law, i.e., the Roman law interdicts and the canon law actio spolii. In the fifteenth century a certain preference for the latter remedy emerged. There is no trace of French remedies, such as maintenue and complainte, which at the same time were received in other parts of the Low Countries. Compared to the late medieval law texts, early modern law in Friesland was less hybrid. The Roman law of interdicts was predominant. A strong Romanisation must have taken place, while the influence of canon law had ceased.

The Legal Status of Personal Prelature According to the Documents Issued by Pope Francis in 2022-2023. Part I

A personal prelature was an ecclesiastical circumscription (complementary community). Its establishment was proposed during the Second Vatican Council. Its aim was to ensure the proper distribution of the clergy and to respond to new pastoral challenges. Its legal status was significantly changed by Pope Francis’s motu proprio of August 8, 2022. By amending the canons of the 1983 Code of Canon Law (can. 294-297), the Roman Pontiff equated this personal structure with a public clerical association of the faithful under the pontifical right. As a result, a personal prelate lost his position as an Ordinary and became a Moderator with the faculties of an Ordinary. The lay faithful who cooperate with a personal prelature are now subject only to the jurisdiction of a local Ordinary. The Dicastery for the Clergy assumed the competences over a personal prelature. The Statutes of the only Personal Prelature of Opus Dei established so far will have to be adapted to the new norms.

III. Der Schwabenspiegel als norddeutsches Kaiserrecht

Summary The essay examines late medieval discussions concerning ‘Kaiserrecht’ (Imperial Law, Emperor’s Law) in northern and eastern Germany. A closer look at the municipal law of Lüneburg (1401) with its different layers of customs, book of statutes, ‘Kaiserrecht’ and Canon law shows clearly the problem. Notwithstanding the close similarity to the learned concept of the theory of the statutes, the Lüneburg source did in fact not follow the erudited hierarchy of particular law and civil law. The city possessed some manuscripts of the so called ‘Schwabenspiegel’ (Swabian Mirror) and the ‘Kleines Kaiserrecht’ (Emperor’s Little Law) which were both, contemporarily, denominated as ‘Kaiserrecht’.

A Twelfth-Century Handbook of Byzantine Canon Law

Abstract This article examines the twelfth-century manuscript BAV Vat. gr. 2198 and its contents in light of new research in the field of Byzantine legal history. This codex is most notable for containing a canon law collection known as the Synthesis of the Nomocanon, attributed to “the monk John, the son of the Sebastokrator.” After first introducing the physical details of the manuscript and its history of ownership, the article then lays out the evidence for the identification of John with Adrian Komnenos, nephew of the emperor Alexios I. It next provides a detailed study of the structure and purpose of the Synthesis of the Nomocanon, arguing that it was an attempt to create a practical handbook of canon law that would allow readers to quickly look up canons on particular themes while also being able to check the historical context in which the canons were issued. Lastly, it also surveys the contents of the manuscript’s extensive appendix and offers some general conclusions about the significance of John’s Synthesis within the broader landscape of Komnenian canon law scholarship.

The Normative Character of the Institution of Cumulative Judgement in Civil Trial: A Comparative Study

The aim of this study is to show how the institution of consolidated cases in Polish civil proceedings was shaped in the context of Polish criminal procedure and canon law. A comparative analysis de lege lata will help to determine the nature of the procedure aimed at issuing a sentence in cases that have been combined into one trial considering their subject matter, and thus answer the question whether there is a cumulative judgement in each of the procedures and how it is understood by the legislator in civil, criminal and canon law. The analysis is an important novelty in research on the institution of cumulative judgement because it enables a comparison of the institution not only within the framework of the state system of law, but also within the autonomous normative system created by canon law.

Parenthood as the Natural and Socio-Legal Title to Raise Offspring in Accordance with the Norm of Canon 1136 of the 1983 Code of Canon Law

The article offers a description and characterization of the special right of parents to raise their offspring on two counts: from the act of becoming a parent and from the fact that arises from the relationship and bond of the parents and their offspring with society. This relationship exists in particular with the Church and the State, for which the family is a fundamental social component. Consequently, both institutions have a vital interest in educating the offspring, with the institutions of foster family and adoption playing a special role.

Reflection on the Exceptions to the General Norm on Dolus in the Pio-Benedictine Code of Canon Law

Canon 103, § 2 of the 1917 Pio-Benedictine Code of Canon Law stated that juridical acts placed out of dolus were valid, if the law did not state otherwise. However, there were four instances when the law did state otherwise, namely; in case of canonical election, if the voter was subject to dolus in order to vote for a certain person, the vote was invalid (canon 169, § 1); in the case of resignation, the law stated that the resignation was invalid if it was made out of dolus (185); in the case of novitiate, the law stated that the novitiate was invalid if the person who entered into religious life would have been induced by dolus to do that, or if the Religious Superior would have been induced by dolus to receive a candidate into religious life (542, lº); and in the case of religious profession, the law stated that the religious profession had to be given without dolus (572, § 1, 4°) in order to be valid. Yet, the canonical commentators pointed out that there were some requirements in each case for dolus to invalidate the juridical act. Thus, in the case of canonical election it must be proved that the voter voted being deceived by either substantial dolus or antecedent dolus. Merely concomitant dolus had no effect on voting. In the case of a resignation from an office again it must be proved that either substantial or antecedent dolus was involved. The same thing was true in the case of the admission to the novitiate and in the case of religious profession, i.e. either substantial or antecedent dolus must be involved.