Canon Lawyers Research Articles

Skin Colour and Priesthood. Debating Bodily Differences in Early Modern Catholicism*

Can people of different skin colours become Catholic priests? What may seem self‐evident from today's perspective, Catholic theologians and canon lawyers controversially debated in the late sixteenth and early seventeenth centuries. While most authors agreed that colour per se was not a problematic factor, an increasing number argued that non‐white individuals should not serve as priests in white communities because of the negative reactions they would provoke there. This article argues that by taking this “perspectivist view” the Catholic Church could claim universality and flexibility in its admission policy whereas, in fact, it incorporated and reinforced anti‐Blackness. The article analyses the hitherto unexplored history of this debate, situates it within broader thinking about bodily differences in an increasingly global Catholic world and shows how it intersected with practical issues surrounding the establishment of an indigenous clergy throughout the Catholic empires and missionary zones.

Colloquium of Anglican and Roman Catholic Canon Lawyers

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Svobodní zednáři v dokumentech katolické církve 1878‒1983 (1985): Od konfliktu k dialogu

The authors of the study present the evolution of the relationship of the Catholic Church with Free Masons during the period 1878‒1983. The pontificate of Leo XIII was characterised by an acute confrontation. This is testified to by many documents of this Pope who accused the Free Masons of enmity toward the Church, of pantheism, relativism, syncretism and dishonouring basic truths of the Christian faith. The Pope sometimes used apocalyptic­-like vocabulary (the synagogue of Satan). This does not amount to, however, accusations of satanism. In papal pronouncements during the twentieth century, the issue of Free Masonry markedly recedes and statements about enmity between the Catholic Church and Free Masons slowly disappear. In the period after the Second World War, there were a number of particular dialogues between Free Masons and Catholics, especially in Austria and Germany. All of this came to a certain degree to an end in 1983 when the Code of Canon Law was published and since then its paragraph 1374 has been applied to Free Masons by most canon lawyers. The authors of the study state that there are lodges among the Masons regular to London that are friendly to the Catholic Church. Every local Church should study the Free Masons in their territory and take a stand towards them according to their findings. Based on their several­-years of research, the authors suggest, to the local Catholic Church in Bohemia and Moravia, starting an official dialogue with the Czech Free Masons regular to London. All of this, of course, depends on the Czech Bishop’s Conference.

Párhuzamok jogi kultúránk zsidó-keresztény és római jogi gyökerei között

On 3 June 2022, the Faculty of Law of the University of Pécs hosted an interdisciplinary conference, where linguists, ancient historians, Roman jurists, rabbinical jurists, canon lawyers, legal philosophers and legal historians discussed the question, the influence of the Old and New Testament legal orders on the European legal culture, and the extent to which there is a parallel between the biblical and Roman legal roots of our legal culture. This volume contains 15 papers whose authors have contributed to this multifaceted discussion of this vast subject in the framework of the research project ’The Legal Relevance of the Vetus et Novum Testamentum. Parallels between the Jewish-Christian and Roman Law Roots of our Legal Culture’ of the Dezső Márkus Research Group for Comparative Legal History. In this introductory paper, the research questions and methodology are presented by the project leader.

Colloquium of Anglican and Roman Catholic Canon Lawyers

Colloquium of Anglican and Roman Catholic Canon Lawyers

Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.

İnsan Haklarının Felsefi Krizi: İslâmî Bir Perspektif

Hanefî usûlünün kurucu isimlerinden Ebû Zeyd ed-Debûsî (ö. 430/1039), dünya hukuk tarihinde ilk defa temel ve devredilemez insan haklarından bahseden hukukçudur. İnsanın hukuki ve ahlâkî kapasitesini “ehliyet” başlığı altında fıkıh usûlünün önemli bir bahsi hâline getiren Debûsî olduğu gibi, ehliyeti ilk defa “vücub ehliyeti” ve “edâ ehliyeti” şeklinde iki kategoriye ayıran da kendisidir. Bu ayrım kendisinden sonra Hanefî geleneğinde yaygın bir kabul görmüştür. Bu gelenek vücub ehliyetinin zemininde “zimmet”in, yani modern anlamıyla hukuki kişiliğin bulunduğunu kabul etmiş ve fakat modern yaklaşımlardan farklı olarak ehliyet ve zimmeti “emanet” ile, yani Yüce Yaratıcı’ya gönüllü kulluk edebilme sorumluluk ve kabiliyetiyle ve insanoğlunun ezelde Yüce Allah ile yaptığı “İlk Sözleşme” ile irtibatlandırmıştır. Debûsî ilâhî hitabı anlamanın ilkesi olarak aklı, kişinin hukuki ve ahlâkî yükümlülükler altına girmesinin zemini olarak da zimmeti tespit ettikten sonra, akıl ve zimmetin işlev görebilmesi için insanın üç temel ve devredilemez hak ile, yani ismet, hürriyet ve mâlikiyet ile donatıldığını ifade etmiştir. Akıl ve zimmet insana Allah tarafından verili olduğu gibi, bu üç temel hak da O’nun tarafından ve emaneti yüklenen insanın insanlık vazifesini yerine getirebilmesi için bahşedilmiştir. Böylelikle temel ve devredilemez haklar teorisi dünya tarihinde ilk defa İslâm-Hanefî hukuk teorisi içerisinde dile getirilmiş olmaktadır. Batı’da ius naturale ibaresi hem kadîm bir tarihe sahip olan “doğal hukuk”, hem de “doğal haklar”ı kapsar. Objektif doğal hak/klasik doğal hukuk geleneği ödev ve yükümlülük merkezliyken, sübjektif doğal hak/modern doğal hukuk anlayışı bireysel özgürlük ve bireyin egemenliği fikri üzerinde temellenmektedir. Klasik doğal hukuk anlayışı, şeylerin düzeni ve amaçlılık (her varlığın kendisine mahsus bir amaca yönelmişliği) fikirleriyle elele yürür. Böylece kâinat bütün unsurlarıyla amaçlı ve ahlâkî bir düzen olmuş olur. Bazı müellifler modern doğal hakların, klasik doğal hukukun bir devamı olduğunu savunurken, bazıları ise modern doğal haklar anlayışının doğal hukuktan bir kopuşu temsil ettiği kanaatindedir. Leo Strauss’a göre Hobbes ve Locke ile başlayan bu dönüşüm, ikisini farklı doktrinler olarak görmemizi gerektiren esasa ilişkin bir dönüşümdür. Michel Villey modern sübjektif doğal hak anlayışını Ockhamlı William ile başlatırken, Brian Tierney söz konusu anlayışının kökenlerini William’dan epeyce önce, 12. ve 13. yüzyılda yaşayan kanon (kilise hukuku) hukukçularının çalışmalarıyla başlatır. Fakat hiçbir araştırmacı, sübjektif doğal haklar ile 11. yüzyılın ilk yarısında vefat eden Debûsî’nin üç temel hakkı arasında bir bağlantı kurmamıştır. Doğal insan hakları anlayışının Batı’ya mahsus bir icat olduğunu söyleyen ve bu anlayışın kökenlerini en erken 12 ve 13. yüzyıl Orta Çağ Hristiyan hukuk düşüncesinde bulan yaklaşımların yanısıra, doğal insan hakları anlayışının yine Batı icadı olduğunu kabul etmekle birlikte bu anlayışın aynı zamanda modern bir icat olduğunu savunanlar da vardır. Modernitenin özne merkezli kavrayışına yönelik eleştirilerde bu düşünce ortaya çıkar ve bu yaklaşımda doğal insan hakları anlayışı, öznel bireyciliğin ayrılmaz bir unsuru olarak kavrandığı için kabul edilmeyen bir fikir olarak görülür. Haklar ancak bağımsız birer birey olarak kavranabilen fertler için söz konusu olabileceğine göre, toplumu esas alan sosyalist ve komüniteryan düşünceler de doğal insan hakları düşüncesini liberalizmin karakteristik bir unsuru olarak görüp reddetmişlerdir. Böyle yaklaşımlar için haklar değil vazifeler esastır. Hukuki pozitivistler ise hak kavramını, metafizik yüklü olduğu gerekçesiyle devre dışı bırakmışlardır. Batı düşüncesinde John Locke’un (ö. 1704) ifade ettiği ve Debûsî’nin listesiyle aynı olan üç temel hak, zamanla modern insan hakları anlayışının çekirdek fikrini oluşturmuştur. John Locke, siyasî toplumun meydana gelmesinden önceki doğa durumunda her insanın hayat, hürriyet ve mülkiyet haklarına eşit olarak ve ellerinden alınamaz bir biçimde sahip olduklarını ifade eder. Öyle anlaşılıyor ki ilk defa Debûsî’nin dile getirdiği ve sonradan Hanefîlerin müşterek anlayışı hâline gelen ehliyet ve doğal haklar teorisi Locke tarafından -doğrudan veya Orta Çağ hukukçuları aracılığıyla dolaylı olarak- kendi liberal haklar anlayışı içerisine kısmen sekülerize edilmek suretiyle adapte edilmiş, sonrasında ise bu anlayış daha da sekülerleştirilerek (Tanrı ile alâkası tamamen kesilerek) bugün bildiğimiz temel insan hakları anlayışının nüvesini oluşturmuştur. Müslüman toplumlarda toplumsal ve siyâsî hayat esas olduğu için, Hobbes ve Locke gibi düşünürlerin tasavvur ettiği türden muhayyel bir doğal durum (tabiat hâli: status naturae) anlayışına ihtiyaç duyulmamıştır. Doğal insan hakları düşüncesi 18. yüzyıldaki büyük devrimlere ilham kaynağı olmuştur. 1776 tarihli Amerikan Bağımsızlık Bildirisi’nde (Declaration of Independence) Bütün insanların eşit yaratıldıkları ve Tanrı tarafından kendilerine devredilemez bazı haklar verildiği ifade edilir. Bu tarihten 13 yıl sonra, Fransız İnsan ve Yurttaş Hakları Bildirisi’nde (Déclaration des Droits de l’Homme et du Citoyen) ise doğal haklar anlayışı kendinde apaçık bir hakikat imiş gibi kabul edilmekle birlikte bu hakların kaynağına, yani Tanrı’ya herhangi bir atıf yapılmaz. Doğal insan hakları anlayışı 19. yüzyılda hukuki pozitivizmin hâkimiyeti nedeniyle metafizik bir bakiye olarak görüldüğü için gözden düşmüş, 20. yüzyılın ilk yarısında ise, iki dünya savaşının oluşturduğu fiilî zorunluluklar sebebiyle tekrar Batı hukuk ve siyaset düşüncesinin gündemine girmiştir. Fakat artık doğal hakların dayandığı metafizik zemin kalmamıştır, bu sebeple günümüzde doğal insan hakları felsefî açıdan bir köken krizi içindedir.

The Binding Force of Unilateral Promises in the Ius Commune before Grotius

The idea that a simple unilateral promise, until it is accepted, is not binding according to natural law is defended by Grotius in his major work with an argumentation drawn directly from Lessius, an important source of inspiration for the Dutch jurist, who in turn solves the dispute rooted in the tradition of ius commune. This article aims to reconstruct, in its essential stages, an itinerary through the main positions of medieval and early modern civil and canon lawyers about this controversial issue. These sources constitute the background of early modern scholastics and Grotius as well. The paper analyses some of the principal texts of both bodies of law, highlighting arguments and adding new findings. Notably it is shown that Lessius’s and Grotius’s statements represent a turning point, as far as they react against the resumption of the theory of the binding force of simple unilateral promises in the sixteenth century. With Lessius and Grotius, on the other hand, acceptance became a necessary requirement for every transfer of rights and duties to be enforceable.

The Caroline Divines and the Church of Rome: A Contribution to Current Ecumenical Dialogue – A Review Article

Readers of the Journal will recall the Ecclesiastical Law Society's long tradition of serious ecumenical engagement, embodied in the biennial Lyndwood Lecture with the Canon Law Society of Great Britain and Ireland, and recall that a number of members of the Society are regularly engaged with the Colloquium of Anglican and Roman Catholic Canon Lawyers. Moreover, ecumenical agreement and disagreement have canonical consequences, as, for example, in the debate about Anglican orders. In moral theology, particularly Roman Catholic moral theology, the relation between moral teaching, the confessional and canon law is obvious to any practitioner. My own interest in the Ecclesiastical Law Society was a direct consequence of my involvement in Anglican–Roman Catholic dialogue as successively co-secretary, member and consultant of the various embodiments of the Anglican–Roman Catholic International Commission (ARCIC) from 1974 onwards. An ecumenical conversation with Canon Graham Routledge, a founder member, led me to seek membership of the Society in its early days.

Der Einfluss der Kanonistik auf die Europäische Rechtskultur, Bd. 6: Völkerrecht ed. by Orazio Condorelli, Franck Roumy and Mathias Schmoeckel

Reviewed by: Der Einfluss der Kanonistik auf die Europäische Rechtskultur, Bd. 6: Völkerrecht ed. by Orazio Condorelli, Franck Roumy and Mathias Schmoeckel Jessalynn Lea Bird Condorelli, Orazio, Franck Roumy, and Mathias Schmoeckel, edd. Der Einfluss der Kanonistik auf die Europäische Rechtskultur, Bd. 6: Völkerrecht. Norm und Struktur, Studien zum sozialen Wandel in Mittelalter und Früher Neuzeit 37/6. Wien: Bӧhlau Verlag, 2020. Pp. 392. €79.99. ISBN: 978-3-412-51891-2. One of a generation of medievalists who, in the aftermath of World War II, researched and held positions with equal facility on both sides of the Atlantic, Peter Landau (1935-2019) left a powerful legacy not only of critical editions, articles, monographs, and textbooks but of scholars trained in legal history. A prolific writer who engaged not only with the medieval legal tradition (civil, canon, and natural law) but Protestant and modern law and history, Professor Landau also played key roles in associations devoted to legal studies, including the Max Planck Institute for the European History of Law and the Stephan Kuttner Institute of Medieval Canon Law. The weighty collection of essays on canon law's impact on international law under review here (in a journal co-edited by Professor Landau for decades) is therefore fittingly dedicated to his memory. The modern world's globalized culture means that international law is more relevant than ever before, as increasingly international governance and alliances determine not merely war and peace but economies and environmental welfare. The twentieth and twenty-first centuries have thus far been dominated by the tension between residual national, ethnic, and religious loyalties and international collaboration, by Axes and Allies, the League of Nations, NATO, the Warsaw Pact, NAFTA, OPAC, the World Bank, RPEC, the European Union, and Brexit. In order to understand the expectations concerning international law which those cultures heavily shaped by European legal traditions brought and still bring to the bargaining table, a consideration of canon law's effect on medieval and early modern international law is essential. But what falls under the purview of international law and what are its bases? The Roman advocate and politician Cicero and [End Page 237] other Roman jurists viewed the ius gentium (literally: law of the peoples), as stemming from human consent, as equal in primacy to natural law, and as truly independent from civil law (ius civile), which applied only to individual countries. However, as the introduction (v-xxii) and Peter Landau's article (xxiii-xxv) explain, most pre-modern canon lawyers adopted their definition of international law from Isidore of Seville's vastly influential Etymologiae. As a bishop, Isidore hybridized Christian morality with the Roman legal tradition and concepts of universal human obligations. He defined the ius gentium as an universal collection of rules originating from human nature, not legislation; international law was used by nearly all peoples to limit strife and uncertainty and therefore dealt with occupation, construction of fortifications, weapons, warfare, prisoners, slavery, the right of return, peace treaties, armistices, the inviolability of ambassadors, and the prohibition of marriage between those of different origins. Isidore's definition was incorporated into the foundational textbook for medieval canon law, Gratian's Decretum. His list of topics therefore provided canonists with focal points for discussion and could well serve as the table of contents for this volume, which also compares medieval concepts of international law to those of other periods (vi-vii). Contracts Must Be Observed But Can Be Broken The volume proper begins with Franck Roumy's investigation of the canonical origins of the clausula rebus sic stantibus (the ability to cease observing or to revise a contract or treaty should the circumstances under which it was originally formulated change to the significant detriment of either party). As Roumy notes, James Muldoon and many others have elucidated the ways in which rules and principles established by medieval canon lawyers influenced modern international law. The particular clausula discussed here was adopted by the pioneering Italian jurist Alberico Gentili (1552-1608), who argued that juridical principles governing private contracts were transferable to [End Page 238] conventions between powerful sovereigns. After Gentili, common opinion decreed that the clausula applied to every accord...

Colloquium of Anglican and Roman Catholic Canon Lawyers

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Qualia bona in coniuge sunt quaerenda.... Zalecenia na temat wyboru żony w świetle średniowiecznych traktatów o wychowaniu (na przykładzie De regimine principum Idziego Rzymianina)

The paper is concerned with the advice regarding choosing a wife presented in the thir-teenthcentury educational treatise De regimine principum by Giles of Rome. It was the most popular “mirror of prince” in the later Middle Ages. In defining the criteria one should pay attention to Giles distinguishes three kinds of “goods” (bona) that an appro-priate wife-to-be should possess. These are the so-called external (exterior) goods and internal (interior) ones, the latter being in turn divided into the bodily goods (bona cor-poris) and the spiritual goods (bona animae). The first kind includes such goods as noble descent (nobilitas generis), multitude of friends (pluralitas amicorum) and abundance of wealth (multitudo divitiarum); the second – beauty (pulchritudo) and size (magnitudo); the third – self control (temperantia) and liking for work (amor operositatis). These three kinds of goods, as well as particular examples of them, are drawn by Giles from Aristotle’s Rhetorica. Yet, when compared to those enumerated by medieval theologians and canon lawyers in their discussons of reasons for marrying, they do not considerably differ from them. What matters is that Giles sees and accepts all of them as relatively equally important as criteria used for choosing a wife. This is because they are all neces-sary for setting up a successful marriage that will bring happiness to a man.

Droit subjectif ou droit objectif? La notion de ius en droit scaramentaire au xiie siècle by Thierry Sol

Reviewed by: Droit subjectif ou droit objectif? La notion de ius en droit scaramentaire au xiie siècle by Thierry Sol Jason Taliadoros Sol, Thierry. Droit subjectif ou droit objectif? La notion de ius en droit scaramentaire au xiie siècle. Turnhout: Brepols, 2017. Pp. 331. $104. ISBN: 978-2-503-57602-2 Thierry Sol's monograph navigates a particularly difficult subject, whose understanding depends on a precise use of language and terms. For this reviewer, who is accustomed to communicating in the English language, the task is therefore doubly difficult. The title, Droit subjectif ou droit objectif? La notion de ius en droit scaramentaire au xxie siècle, translates as 'Subjective Right or Objective Right?: The Notion of Right in Sacramental Law in the Twelfth Century'. The word droit in French, just like the Latin term it translates, 'ius', can mean either 'right' or 'law' in English. Which of these is meant here? The French terms 'droit subjectif' and 'droit objectif' translate as 'subjective right' and 'objective right' respectively, since the term 'droit' here is intended to capture the broader idea of an entitlement, something due to someone, rather than the narrower English term 'law', which more commonly connotes a normative system, usually in a positivist sense. Of course, the other reason for translating 'droit' as 'right' is that Sol clearly situates his book within the scholarly controversy that has influenced political, historical, and legal historical scholarship on the origin of the use of the concept of subjective right (droit subjectif) in the history of Western European thought: the debate between American medievalist and canon lawyer, Brian Tierney, and French legal theorist, legal historian, and Roman lawyer, Michel Villey. These two men, each of them extremely influential leaders in their respective centres of learning, came up with two very different solutions to this quandary. As to whether they were in fact answering the same question, Sol has something to say on this, of which I will add more below. From Villey's perspective, there was a Copernican-like moment in the fourteenth century in the writings of William Ockham when that author conceived of the novel concept of a subjective right when employing the Latin term [End Page 337] 'ius'; this was significant because previously that same Latin term had designated only an objective right. The distinctive quality in Ockham, for Villey, was that when referring to the term 'ius', Ockham meant also 'potestas', a power in the individual.1 In contrast, Tierney situated this same moment two centuries earlier in the writings of the twelfth-century decretists as they commentated on the swirling meanings of the term ius in the text of Gratian's Decretum. Villey's works on this topic spanned the period from the mid-1940s to the early 1980s, while Tierney's contributions began in the 1960s and have continued right up to the present day. Tierney's Liberty and Law, published in 2014, was the culmination of his 'corpus' on the idea of the subjective, or permissive, right, which I reviewed in a recent volume of this journal.2 Now Brian Tierney has joined Michel Villey as another master scholar to have passed from us.3 Thierry Sol's stated aim in writing this book is not, like Tierney or Villey, to find the historical a priori starting point for 'individual rights' but instead to pursue 'a subjective way of thinking of rights, beginning from faculties and powers that a man can use'.4 Sol's perspective is that of the theologian and the canonist as his focus is on how this subjective way of thinking manifests itself in the 'munus sanctificandi', one of the offices or duties of the ordained priest, namely that of sanctifying (including the right of celebrating the sacraments and the associated right of [End Page 338] binding and loosing, excommunicating and deposing). This office of sanctifying, Sol notes, was also a major preoccupation of canon lawyers in the twelfth century, the period to which he confines his study. So centring his study on this essential role of the priest, the central question Sol asks himself is this:5 is the right of celebrating [the sacraments] (ius...

The Eighteenth Colloquium of Anglican and Roman Catholic Canon Lawyers

The Eighteenth Colloquium of Anglican and Roman Catholic Canon Lawyers

The Ministerium Naturae: Natural Law in the Exegesis and Theological Discourse at Paris between 1160 and 1215.

During the 12th century and early 13th century, natural law was a central interest of canon lawyers and Roman lawyers, but theologians also debated it on the basis of the exegesis of some key passages of Scripture. Peter Lombard, with his understanding of the content of Paul's Epistle to the Romans 1:19 and 2:13-14 is at the origin of a relevant tradition within the Parisian theological framework. The article examines how natural law is analyzed by the Lombard and his major successors, namely Peter Comestor, Peter the Chanter, and Stephen Langton.

Law, Religion, and Debt Relief: Balancing above the ‘Abyss of Despair’ in Early Modern Canon Law and Theology

Debt forgiveness is at the heart of the gospel message. The Lord sent His Son to redeem the debts of the world created by Adam and Eve and that were transmitted to subsequent generations of humanity. The New Testament restored older biblical ideas of debt relief, such as the Jubilee. The Lord’s Prayer begs God to forgive the pious their debts, as they also forgive their debtors (Mt 6:12). Yet what, if anything, does that mean for legal practice? Is there a Christian mode of debt collection and enforcing contractual promises? Should Christian creditors refrain from exercising their rights? This paper explores the responses to these questions given by canon lawyers and moral theologians in sixteenth- and seventeenth-century Europe, many of whom belonged to the so-called ‘School of Salamanca’. They took natural law as the ultimate measure to evaluate the lawfulness of man’s actions in the world. I conclude that these moral and legal experts were sensitive to the needs of indigent debtors, but certainly not to the point of promoting debt cancellation. They insisted upon the bindingness of contractual promises (pacta sunt servanda) and considered postponing repayment to be the most appropriate manner to deal with insolvent debtors. Debt relief in the strict sense was viewed suspiciously, since the marketplace is subject to the dictates of justice, not charity.

Roman Law Sources and Canonical Collections in the Early Middle Ages

Roman Law Sources and Canonical Collections in the Early Middle Ages Antonia Fiori Canonical 'preservation' of Roman Law It is well known that, being a part of the Roman Empire, the Church lived under Roman law from its earliest organization, and that canon law was one of the most important means for the preservation of Roman law in the early medieval period. But 'preservation' can be understood in two different ways: first, as a preservation of the spirit and the rules of Roman law through canon law; secondly, as a preservation of the original texts themselves. The first is a general problem of legal culture, the second a specific philological matter. But these different points of view are not completely independent of one other, but rather two faces of the same process. In this paper, I shall attempt to analyze the Italian canon law collections up to the year 900 together with some almost contemporary ecclesiastical quotations of Roman law. Yet we must remember the caveat that what happened in the ninth and tenth centuries is only a stage, and not the final one, in the process just mentioned, which would be completed with the Gregorian Reform. At that time almost every part of Justinian's compilation, including some which have since disappeared, were rediscovered by canon lawyers (the only exception being the Tres Libri). The philological passion of the Gregorian supporters—even if not technically well-founded—was an important instrument that helped and sustained the formation of a legal order of the Church in the age of the so-called 'Papal Revolution'.1 In fact, canon law was not an organized body of laws in the early Middle Ages, and it is also hard to see it as the unified legal [End Page 1] order of the Church. There were several canonical traditions greatly influenced by local customs and often strongly devoted to them. Up to the Gregorian Reform these local or 'national' churches, with their canonical councils and canonical customs, were in a dialectical relationship with the Roman Church, which entailed a wide autonomy.2 It was the Roman Church, representing the 'Römische Zentrum', which tried to maintain the spirit of Roman law in this period, and sometimes imposed it on the 'Kirchliche Peripherie' (to use the terminology of a relatively recent congress held at the Deutsches Historisches Institut in Rom).3 In most of Europe during the early Middle Ages Roman law was still represented by the Theodosian tradition, mainly known through the Breviarium Alaricianum, but not so in Italy, where—leaving aside the difficult matter of surviving elements of Theodosian law4—Justinian's compilation was promulgated in 554 after the Gothic Wars. Thus the Pragmatica sanctio introduced the Corpus iuris civilis into Italy less than 15 years before the arrival of the Lombards (568). As he had died three years before, Justinian did not see how vain had been his great effort to reconquer Italy. His Corpus did not have enough time to become known and studied. Along with Radding and Ciaralli, we can say that 'the Justinianic codification simply fell from sight and from use, in Italy and everywhere else, between the end of the sixth century and the end of the eighth'.5 The Church saved the spirit of Roman law, even influencing through it some developments in Lombard law. But there is no [End Page 2] evidence at all of a textual knowledge in ecclesiastical contexts until the Carolingian period, when many Roman law fragments reappeared in a few canonical collections. Two questions are open. First, why did they reappear in the Carolingian period and not before? Secondly, what kind of knowledge did these canon lawyers have or, better, which kinds of texts did they know? The cultural Renaissance which occurred with the birth of the Carolingian empire is obviously one good answer to the first question. But even more significant was the papal idea, or papal hope, that the Western Empire, reborn under Charles the Great, should in its second life still be Roman and, furthermore, holy. While general attention was fixed on Charles and his Frankish kingdom, and Frankish customs were obviously ready to break out into the...

Anglo-Norman Canonical Views on Clerical Marriage and the Eastern Church

Anglo-Norman Canonical Views on Clerical Marriage and the Eastern Church Maroula Perisanidi1 The Eastern and Western Churches shared much of their conciliar tradition, including both ecumenical and local ancient councils. These formed the basis of the twelfth-century canonical commentaries in Byzantium, while in the West they shaped the law both as authorities in support of newer conciliar decrees and through their inclusion in canonical collections, such as the Collectio Lanfranci, Ivo of Chartres' Decretum, the Tripartita, and the Panormia.2 Gratian's Decretum, the single most important canonistic work of the Middle Ages, quoted almost 200 chapters from Eastern councils, ranging from Nicaea I (325) to Constantinople IV (869-870), including eighteen references to the council in Trullo (691-692) which fixed the rules of clerical marriage for the Orthodox Church.3 This shared tradition meant that long after the last ecumenical council, there was still legal interaction between the [End Page 113] Western and Eastern Churches, at least in the minds of the canon lawyers who were confronted with laws advocating practices alien to their own.4 In this article, I will focus on one such alien practice—clerical marriage—in the commentaries of two Anglo-Norman decretists, Master Honorius and the author of the Summa Lipsiensis.5 At the end of the twelfth century, when these commentaries were written, clerical marriage was still a contentious issue in the West. As such, a hostile attitude might be expected, not only towards the practice itself, but also towards the Eastern clergy who still adhered to it. In what follows, I will argue that these Anglo-Norman decretists referred to the Eastern Church and its married priests much more often than one might expect, given the relative absence of interactions between Byzantium and the AngloNorman [End Page 114] realm, and that they did so without hostility.6 Their references include comments that sprang directly from the text of Gratian that they had in front of them, as well as more imaginative speculations about faraway priests. They accepted clerical marriage in the East as a tradition that was different from their own, but one that was also valid. In their treatment of the Western clergy, they adopted a moderate position. Regarding two of the most important issues of the reform period, church property was often mentioned, but the question of purity was rather muted. These attitudes towards Eastern and Western clerics and their marriages were likely to have stemmed from the two decretists' understanding (correct or not) of the historical development of clerical marriage, as well as their, perhaps inevitable, focus on the law. On the one hand, they thought that clerical celibacy was a man-made imposition; on the other, their purpose was to explore the limits of the laws, rather than to adopt a polemical stance. Finally, I will contrast this interest in the East to the rather indifferent and, if anything, hostile attitude that the twelfth-century Byzantine canon lawyers exhibited towards the marital customs of the West. This study hopes to be a useful addition to Brieskorn's recent article on Western canonical [End Page 115] attitudes towards the Eastern Church in the Liber Extra (1234) which also noted a rather positive and lenient attitude towards the married clergy in the East.7 Rules and Background: West and East In the West, bishops, priests, deacons, and eventually subdeacons were expected to observe complete sexual abstinence. This had been the theory since at least the late fourth century, when we find the first legislation concerning priests who were still allowed to be married, but were prohibited from having sex with their wives.8 A re-iteration of such rules continued periodically and with limited success until the eleventh and twelfth centuries, when the papacy became more able to force Western clergy to play by its rules. In this period, celibacy rather than continence was expected, and the marriage of clerics in major orders was presented as sinful, polluting, and ultimately invalid.9 In some cases, priests, deacons, and subdeacons who refused to separate from their wives were forbidden to celebrate [End Page 116] mass and were deprived of their benefices, while the faithful were encouraged to...

Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883 by David Wagschal

Reviewed by: Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883 by David Wagschal Paul Magdalino David Wagschal Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883 Oxford Early Christian Studies Oxford: Oxford University Press, 2015 Pp. xx + 331. $125.00. This is an important book, which makes the Byzantine canonical tradition more interesting to Byzantinists and more respectable to legal historians, while contextualizing its uniqueness for those who still live it in the Orthodox churches. Law and legality do not excite most people who are drawn to study Byzantium for its material culture, its intellectual legacy, and its imperial politics, while Byzantine legal literature is difficult to mine for evidence of Byzantine norms. Legal historians, with the partial exception of the “Frankfurt School,” have treated the Byzantine legal tradition as a degenerate residue of Roman Law, with a canonical component that is beneath consideration. This is in contrast to the medieval West, where canon lawyers were at the cutting edge of jurisprudence, and indeed of systematic thought, in the “twelfth-century Renaissance.” Interpreters of Byzantine canon law within the Orthodox tradition have either tried to fit it into a formalist, jurisprudential straitjacket, or they have made a theological virtue out of its lack of legal formalism, seeing the canons as only the superficial aspect of a divine, spiritual jurisdiction that transcends mere rules and regulations. The four chapters of David Wagschal’s closely argued and meticulously crafted book present the “divine and sacred canons” as a Weberian “substantive law.” They show that the Byzantine canonical corpus, an accretion of conciliar canons from the fourth to the ninth centuries augmented with pseudo-apostolic, patristic and imperial material, was a normative and authoritative body of legislation; however, it cannot be studied according to the same criteria as other legislative systems in the Roman or post-Roman world. It was coherent, stable, self-contained, and internally consistent, but its cohesion lay in its biblical frame of reference and its adherence to tradition, rather than in a systematic application of forensic method, technical language, and comprehensive thematic treatment. It was programmatic, but its program was embedded in the texts of the canons themselves rather than being imposed by a strategy of legislation. It shows many recognisable features of a legalistic mentality, but these do not add up to a legal system. There is a massive, authoritative canonical edifice, but there is no canon law. The dominant discourse is normative, but juridical argument is only a part of it; apart from the appeal to tradition and the Bible, the canons are marked by a pedagogical manner and a tendency to emotive persuasion. In Wagschal’s words, “it remains difficult not to read Byzantine canon law as a very real counterpoint to the formalist instincts of mainstream civil-legal culture as it has developed in Europe since the high middle ages . . . . Very broadly, the one is ‘mechanical,’ almost technological, in operation and orientation, while the other is much more literary” (281). The significance of Wagschal’s conclusion is that it exhaustively confirms, for the Byzantine canonical tradition, Dieter Simon’s reading, over forty years ago, [End Page 655] of a civil judgment by the eleventh-century judge Eustathios Romaios. As the judge’s anonymous admirer recorded, Eustathios “also cited laws” in reaching a verdict that he justified mainly by rhetorical argument seasoned with philosophical concepts and literary allusions. The law, Simon concluded, was just one of the intellectual tools in the Byzantine application of justice. Wagschal’s book-length development of this thesis has profound implications not only for Byzantine legal history, but for Byzantine studies in general, because it demonstrates that Byzantine law has to be studied as a function of Byzantine logos, a polysemic word that can be roughly rendered, in this context, as “learning” or “intellectual/literary discourse” or “reasoning eloquence.” This reviewer was particularly struck by the proximity of Wagschal’s discussion of the manuscript tradition of the canons (24–32) to the approach now adopted by scholars examining the transmission of literary, particularly anonymous texts: an approach that respects the autonomy and integrity of each manuscript witness and starts from the principle...

The Servitude of the Flesh from the Twelfth to the Fourteenth Century

This essay explores one of the distinctive features of Western Christian thought in the Middle Ages: medieval canon lawyers’ highly abstract and legalistic treatment of sexual intercourse within marriage, a product of their efforts to give legal meaning to the biblical injunction that spouses “shall be one flesh.” It does so by describing the lawyers’ development of a ius in corpus, a right of each spouse to the body of the other for the purpose of sexual intercourse. The canon lawyers treat the ius in corpus as a property right: either as one spouse’s ownership of the other’s body or as a real servitude--a type of easement--that the body of one spouse holds over the body of the other. Moreover, a spouse can demand that “possession” of that right be restored to him or her by court order. The canon lawyers’ reasoning “purifies” marital sex of its concrete, physical features and instead transforms it into a legal act that reifies the fiction of the one marital flesh.