CANON LAW, HISTORY OF
The nature of the Church as a visible society existing in the world demands that there be a formal legal structure guiding and coordinating the faithful to the attainment of a common goal. The body of these ecclesiastical laws is called CANON LAW. Since there is continual change in society, there is constant change in Canon Law. The history of Canon Law is, in fact, the history of continual borrowing from and adaptation to the milieu in which the Church found herself. The discussion in this article is treated under the following main headings: (1) Early Church, (2) Carolingian Era, (3) False Decretals to Gratian, (4) Classical Period, (5) The Corpus Iuris Canonici to the Council of Trent, (6) The Council of Trent to the Code of Canon Law, and (7) The Code of Canon Law to the Present.
1. Early Church
From the beginning of the 3d century at least, the local Christian community—wherever it was established—possessed adequate and necessary machinery for its government. It had certain stable and universal characteristics: oneness of faith, of ethics, and of cult (especially Baptism and the Eucharist), a monarchial and indivisible episcopacy, the notion of apostolic succession, the distinction between clergy and laity, and finally an awareness of the principle of a ius ecclesiasticum (ecclesiastical law). There were as well factors that assured coordination among Christian communities and promoted supralocal unity: the consecration of the bishop by several neighboring bishops; episcopal assemblies; the drawing up of the constitutions of the Church; exchange of episcopal letters; collections of conciliar canons; and, after the advent of the Roman Emperor CONSTANTINE I (313), the support of imperial power. Although it cannot be said that a juridical society in the strict sense existed as yet (for in fact the code of laws was concerned mainly with matters of worship), the bases of the organization of a community were ready at hand in New Testament writings (cf. Mt 16.18–19; 18.18; 28.18; Jn 10.21; 21.15–17), where the beginnings of a regulatory system can be seen; the Apostolic Council of Antioch of 51 (Acts 15.23–29), matrimonial legislation, excommunication, justice within a community (Mt 18.15–18; 1 Cor 5–7).
The internal organization of Christian communities before the end of the 3d century must be reconstructed from sources not specifically juridical: the New Testament, apocryphal and antiheretical literature of the 2d century, and the writings of the apostolic Fathers and apologists. The most important of these are the letter of the Roman community to the community of Corinth, known as the Prima Clementis (Rome, c. 96), the Epistle of BARNABAS (Alexandria, 96 to 130), the apocryphal apocalypse known as the Shepherd of HERMAS (Rome, c. 96 to 140), the letters of IGNATIUS OF ANTIOCH (d. c. 110), and the letter of POLYCARP of Smyrna (d. 167?) to the community of Philippi.
With the 3d century, the Africans Tertullian and Cyprian molded the framework and the vocabulary of Western Law (institutio, disciplina, regula, successio, sacramentum, ordo, plebs, ius, primatus, cathedra, etc.). Besides, there were the pseudo-Apostolic Constitutions of the Church, juridico-didactic or juridico-liturgical documents. Written primarily in Greek, these constitutions were soon translated into Arabic, Syriac, Ethiopian, Coptic, and Latin, and constantly corrected and reedited. They were widely diffused and became the foundation of the discipline of the communities. They included the Doctrina XII Apostolorum or the DIDACHE (c. 100), which originated in Syria or Palestine; the Traditio Apostolica of HIPPOLYTUS OF ROME (c. 218), which is fundamental for the cult and discipline of the Church of Rome (again written in Greek) and which is the basis for subsequent constitutions; the DIDASCALIA APOSTOLORUM (c. 250 or 300, Syria or Palestine), the first attempt at a canonical corpus; the Constitutiones Apostolorum in eight books (c. 400, Syria or Palestine), whose influence was widespread despite subsequent reprobation of QUINISEXT, the Council in Trullo (691); the 30 Canones ecclesiastici Apostolorum (c. 300, Syria or Egypt); the 85 Canones Apostolorum (which are books of Constitutiones Apostolorum), the first 50 of which are known in the West (notwithstanding their rejection by the Decretum Gelasianum); the 38 Canones Hippolyti, which were an
enlargement of the Traditio Apostolica of Hippolytus; the nine Canones pseudo-synodi Antiochenae apostolorum (c. 350 to 400, Palestine? Antioch?); the Constitutiones per Hippolytum or Epitome (post-5th-century); the Testamentum Domini (400 to 500, Syria); the 18 and the 25 Canones paenitentiales apostolorum (4th century); the Octateuchus Clementis (512 or 518? 8th-century Syriac version).
Development of Canon Law in the East to the 7th Century. The first Greek canonical collection preserved in the original text was the Synagoge Canonum in 50 titles by John the Scholastic III (c. 570). The Oriental collections before this date are accessible only in reconstructions from Latin or Syriac versions. These are conciliar texts that became sources of law by reason of the authority attributed to them by the Churches. Including translations, the Oriental collection prior to the 6th century consists of the following documents: (1) The first deposit embraces the decrees of the Councils of ANCYRA (314), NEOCAESAREA (314 to 25), GANGRA (341 to 42), Antioch (c. 341), and Laodicea (343 to 380), compiled under Bishop Meletios of Antioch (c. 342 to 381), and known as the Corpus canonum of Antioch. To this were subsequently added (2) the canons of the Councils of NI CAEA I (325) and CONSTANTINOPLE I (381); this is the collection to which the Fathers of CHALCEDON (451) referred. (3) Finally, after 451, the canons of CHALCEDON were added to the above mentioned documents. The whole collection (1, 2, 3) is known as the SYNTAGMA CANONUM ANTIOCHENUM, or the primitive foundation upon which all the ancient collections rested. In about 500 the Syntagma was translated into Syriac at Mabbug. During the 6th century (soon after 519), the canons of the Councils of Ephesus (431), Africa (419), and SARDICA (343) and the 85 Canones Apostolorum were added. The Council in Trullo, or the Quinisext Council (691), limited the sources of law to the general and local councils, thePage 39 | Top of Article Patristic canons, and the Canon of Cyprian (c.2). It is, indeed, this list in the Collectio Trullana that constitutes the common foundation of Oriental law.
After the era of Constantine, the emperors often legislated on ecclesiastical matters, as protectors of the Church (e.g., in the Codex Theodosianus of 438, books 3, 9, and 16). But it was Justinian who exercised a capital, formal, and decisive influence on the development of Canon Law by his religious legislation in the Corpus Iuris Civilis, from which excerpts or summaries were soon drawn for the special use of the Church. The imperial laws were added as appendixes to the systematic canonical collections, such as the Collectio LX titulorum (c. 535) and the Collectio L titulorum of John the Scholastic (c. 570), to make up mixed collections that prepared the way for a new type of collection, the NOMOCANON. These latter were collections utriusque iuris, combining civil laws and conciliar canons on the same subject.
Pre-Carolingian Law in the West. In the West the history of the most ancient canonical collections is mixed up with the history of the versions. Very early (probably under Julius I, 337 to 352? and Innocent I, 401 to 417?), the canons of Nicaea (325) and of Sardica were translated and gathered in the collection Vetus Romana, which certainly was in use at the beginning of the 5th century. The so-called Isidoriana, or Hispana Collectio-Versio, known in three recensions, was probably prepared in Rome between c. 419 and 451. The so-called Prisca, or Itala Collectio-Versio, differs from the Isidoriana with respect to the ordering of the canons.
Under the pontificates of Gelasius I (492 to 496) and his successors until Hormisdas (514 to 523), there was a fruitful and original juridical activity, born of the Gelasian renaissance. The work no longer consisted merely of translations, but was an ordering of the councils and decretals into a single corpus, with the purpose of unifying and coordinating legislation under the authority of the Roman pontiff and of making it universally obligatory. The most famous work is the collectio-versio of DIONY SIUS EXIGUUS, the so-called Dionysiana, known in at least three editions: the Prima (c. 497 to 500), the Secunda (beginning of 6th century), and the Tertia (before 523). The same Dionysius completed his collectio-versio with a Collectio decretalium (c. 498 to 514), consisting of decretals from Siricius (384 to 399) to Anastasius II (496 to 498), taken either from the archives of the Lateran or from earlier collections. The two Dionysian works, known also as Liber canonum and Liber decretorum (Zacharias to Pepin in 747) are now called the DIONYSIANA COLLECTIO. Together with the Dionysiana, in the same period are (c. 495 to 500) the QUESNELLIANA COLLECTIO, known especially in France, the Freising Collection (after
495), the Vaticana (under Hormisdas), the Sanblasiana, and the Teatina or Collectio Ingilrami (soon after 523), all of which pursue the same goal as the Dionysiana with varying degrees of success, i.e., the collecting of ancient law and the unifying of it.
The researches of W. H. Peitz call into question the history of the earlier collections up to the 6th century. According to Peitz (1) all the ancient versions, with the exception of the Vetus Romana, were prepared by Dionysius Exiguus. The Prisca and the Isidoriana were thus successive corrections of the same work by the same author. (2) Before Dionysius, there was no collection at all, in either Greek or Latin. Even the Syntagma canonum antiochenum is a work of Dionysius circulating in the East. The same applies to the Corpus canonum of the African Church. (3) Collections such as the Frisingensis or the Quesnelliana derive from the Dionysiana in varying degrees. If these conclusions are accepted, they will necessitate the rewriting of the history of the sources anterior to the 6th century.
The Italian collections subsequent to the Gelasian renaissance (Dionysiana) and prior to the Carolingian renaissance (Dionysio-Hadriana) are of minor importance, except for the following collections of decretals: the Thessalonicensis (c. 531), the AVELLANA (c. 555) and the Mutinensis (c. 601).
Canon Law in the Spanish Church. Juridical activity in Spain was characterized from its origins by a concern for unification. Few documents (versions, decretals) have survived from the period before the Visigothic invasion. Beginning with the conversion of Recaredo (586), close ties were forged between the civil power and the hierarchy, favoring the establishment of solid institutions. With the Council of TOLEDO (589) there began a conciliar activity unique in the Church for its regularity and conservatism. It resulted in the Collectio Hispana chronologica, the so-called Isidoriana (falsely attributed to Isidore of Seville, d. 636). Based on the Dionysiana, this collection was drawn up at the Council of Toledo (633); between then and the 17th Council of Toledo (694) it was increased by 104 decretals (from Damasus, 366 to 384, to Gregory I, 604). To facilitate its use, a Tabula (systematic summary) was composed, followed later by Excerpta along the same lines. When the extracts in the Excerpta were replaced by complete texts from the Collectio, the Hispana chronologica then became what is known as the Hispana systematica (in Spain, end of 7th century; or in Gaul, c. 800).
Systematic Collections of the African Church. The African Church, particularly in the persons of Tertullian and Cyprian, molded the vocabulary of law. Versions were always held in honor there, such as the Caeciliani Versio (beginning of 5th century) and the two versions established at the time of the Apiarian controversy: the Attici Versio and the Cyrilli Versio. The Corpus canonum orientale was translated for the first time in Africa (Corpus canonum Africanum). Among the canonical collections there may be noted the Breviarium of Hippo (393) and the Collectio concilii Cartaginensis 17 (419), known also as the Codex canonum Ecclesiae Africanae. Both the West and the East owed their acquaintance with African canons to the text of this collection. The Vandal invasion and persecution (after 429) put an end to the vitality of the African Church; even after the restoration of the hierarchy under Justinian (534), conciliar activity did not revive. Production was confined to systematic compilations: the Breviatio canonum of Fulgentius Ferrandus in 232 chapters (c. 546), and the Concordia canonum attributed to a bishop, Cresconius, but actually compiled in the 6th or 7th century. The latter is a systematic classification of the chronological collections of Dionysius Exiguus (according to Peitz, this would in fact be one of Dionysius' works). The Arabian invasion permanently destroyed the African Church.
Gallic Collections. In Gaul, as in the Spanish Church but with less continuity and centralism, the conciliar activity was active until the end of the 7th century (Council of Saint-Jean-de-Losne, 673 to 675). During the troubled years of the accession to power of the mayors of the Palace of Austrasia (the future Carolingians) toward 740, the Frankish Church went through a period of profound decadence. The Gallic collections up to the Carolingian renaissance are as follows: the STATUTA ECCLESIAE ANTIQUA (c. 476 to 485), the Collectio Arelatensis or the (pseudo) Council of Arles II (442 to 506), the Andegavensis I (after 450), and perhaps the Quesnelliana. In the 6th century there was the Liber auctoritatum, or Liber canonum, of the Church of Arles (c. 560 to 595), as well as various collections: the Corbeiensis, the Coloniensis, the Albigensis, the Lugdunensis, the Remensis I, the Lauresheimensis (Lorsch), the Pithouensis, the Bigotiana, the Collectio S. Mauri, and the Collection of Saint-Amand. To the period immediately preceding the Carolingian period belong the Andegavensis II, which is relatively well ordered, and the Herovalliana (c. 740), which is badly ordered and corrupt. Neither collection was of a quality to arrest in any way the deterioration that law was undergoing.
Decline and Decentralization of Discipline. In fact, from the end of the paleo-Christian era (late 6th century) until the Carolingian renaissance (from the 2d half of the 8th century), a period of anarchy and decadence reigned in the Church, as a result of the breaking up of the Imperium after the invasions, and of the progressive and turbulent rise of the national kingdoms. The sources of law reflect this situation: there are local peculiarities and a confusion in discipline and in worship.
From the time of the invasions the new law of the conquerors had been juxtaposed to Roman law. However, because of the personal character of the Roman laws, the Lex romana continued to be applied to the persons and things of the Church, which were considered as "Roman." Hence special collections were compiled for the use of persons subject to Roman law: the Lex romana Visigothorum or the Breviarium of Alaric (c. 506), the Edictum Theodorici (beginning of the 6th century), the Lex romana Burgundionum (beginning of 6th century), and the Lex romana Curiensis or Raetica (8th century). See LEGES ROMANAE BARBARORUM.
From the 6th to the 12th centuries Germanic law contributed increasingly to the formation of Canon Law, because of the ascendancy of the Franks and later of the Empire in the life of the Church. The collections of Germanic law, which were all composed after the conversionPage 41 | Top of Article of the peoples to Christianity, already reflected the influence of the Church: the Lex Salica (c. 500, and versions until c. 750), the Lex Ripuaria (6th–8th centuries), the Lex Francorum Chamavorum (c. 802 or 803), the Lex barbara Burgundionum or Lex Gundobaldi (end of 5th century), the Lex Alamannorum (beginning of 7th century), the Lex Baïwarorum (c. 750), the Lex Frisonum (8th or 9th century), the Lex Saxorum (beginning 9th century), the Lex Thuringorum or Lex Anglorum (beginning 9th century), the Lex barbara Visigothroum (466 or 485 to 649 or 672), the Leges Langobardorum (whose first collation of 643 is known as the Edictum Rothari).
To these documents should be added the acts emanating from the royal power, such as the CAPITULARIES and the Diplomata. A very concrete source of law is provided by the formularies, collections of formulas used for the authentic production of civil or ecclesiastical acts. Such for example were the 400 Formulae of the Ostrogothic Kingdom collected by Cassiodorus c. 537 under the name of Variae, and the Formulae of Marculf (c. 660). All the other collections of Formulae, including the famous LIBER DIURNUS ROMANORUM PONTIFICUM (from 590 to 795) are not from this period.
Penitentials. From the Insular Churches (i.e., those of the British Isles: England, Wales, Scotland, Ireland), where there prevailed juridical peculiarities in organization and discipline, a penitential system based on a scale of penances, and differing from the ancient Paenitentia of the Church, spread to the Continent through missionary monks and the numerous libri paenitentiales that appeared from the 6th century onward. These PENITENTIALS contain catalogues of sins and the corresponding scales of penances and were of great importance both for penitential discipline and for the history of morals and customs. The penitentials were also an effective instrument of civilization through their regulations on hygiene and food.
Bibliography: F. MAASSEN, Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande bis dem Ausgang des Mittelalterrs (Graz 1870; repr. Graz 1956). P. FOURNIER and G. LEBRAS, Histoire des collections canoniques en occident depuis les fausses décrétales jusqu'au Décret de Gratien, 2 v. (Paris 1931–32). S. KUTTNER, Repertorium der Kanonistik (Rome 1937); Studi e Testi, 71. I. A. ZEIGER, Historia iuris canonici, 2 v. (Rome 1940–47). B. KURTSCHEID and F. A. WILCHES, Historia iuris canonici, 2 v. (Rome 1941–43). A. VAN HOVE, Commentarium Lovaniense in Codicem iuris canonici 1, v.1–5 (Mechline 1928– d). A. M. STICKLER, Historia iuris canonici latini: v.1, Historia fontium (Turin 1950). W. M. PLÖCHL, Geschichte des Kirchenrechts, 3 v. (Vienna 1953–59). H. E. FEINE, Kirchliche Rechtsgeschichte, v.1, Die Katholische Kirche (3d ed. Weimar 1955). J. GAUDEMET, L'Église dans l'Empire romain (Paris 1958). J. J. RYAN, "Observations on the Pre-Gratian Canonical Collections," Actes du Congràs de Droit Canonique médiéval (Louvain 1958). W. M. PEITZ, Dionysius Exiguus-Studien, ed. H. FOERSTER (Berlin 1960). A. COUSSA, Epitome praelectionum de iure ecclesiastico orientali, 3 v. (Grottaferrata-Rome 1948–50; supplement 1958). G. LE BRAS et al., eds., Histoire du droit et des institutions de l'Église en Occident (Paris 1955–)v.1, Prolégomenès. E. SCHWARTZ, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 25, 56 (1936) 1–114.
2. Carolingian Era
In about the middle of the 8th century, the Franks began to take over the protection of the Latin Church. Spain was Arab, England isolated, and the Eastern Roman Empire, alienated from the Western Church after the Trullan Council (692) and weakened by the iconoclast controversy, had quarreled with the papacy, which in turn sought support among the Franks against the Lombards. The consolidation of the Frankish Church had been intimately connected with the development of the Austrasian Carolingians. Imbued as he was with Germanic notions of a private church, the major-domo Charles Martel (d. 741) had parceled out Church lands and offices to laymen; he did indeed support missionary activity (of Willibrord, Pirmin, Boniface), but he did not trouble himself with Canon Law or constitutions. The last known conference of bishops had been in about 680, and there was no longer any metropolitan organization.
When he took over the duties of a king, Martel's son Pepin (742 to 768), together with his brother Carloman until 747, and in accord with the ideas of the Pope, set about strengthening ecclesiastical organization. Though Pepin may have disappointed the pope after his acquisition of the royal title in 751, a title and legitimation for which he had the Pope to thank, he did lay the groundwork of a Rome-oriented Canon Law, and this was of importance for the future.
Canon Law of the Merovingian Period. Under the Merovingians, the independence of the national churches had come strongly to the fore, both in the field of liturgy and in the field of Canon Law; the universal collections (e.g., DIONYSIANA, later HISPANA) had been supplemented since as early as the 6th century (perhaps stemming from Arles) by works of a more local coloring. There had indeed been attempts to combine the two principles, the universal and the local [cf. the Collectio Andegavensis, probably initiated by Leodegar of Autun (d. 679 or 680) and the Herovalliana from the first half of the 8th century]. But hope of success was assured only when the Monarch began to interest himself in a unification of Canon Law. Pepin himself requested from Pope Zacharias a rescript on Canon Law in 747.
The insular PENITENTIALS, brought by the Irish-Scottish and Anglo-Saxon missionaries, exercised an influencePage 42 | Top of Article on the Frankish Church, independently of the general collections. With their highly developed casuistry and their tendency to replace protracted mild penances by short strict ones (redemption principle), these insular penitentials became widely disseminated and began to supplant the comparatively meager penitential instructions of the ancient Church.
Carolingian Ecclesiastical Reform. The aim of the Carolingian ecclesiastical reform initiated by Pepin was to reduce the divergent institutions and tendencies of Canon Law into a unity dictated by the Carolingian monarchy and supported by the clergy and imperial nobility. Anyone who, like U. Stutz or H. E. Feine, speaks of an "irruption of Germanism into canon law" and a period of "Germanically cast canon law" extending down to Gratian (1140), simply because the lower echelons of the Church were being reorganized according to the idea of the private church is looking at a broad reform in a way that narrows it to a mere portion of itself and then regards it from a merely modern legal-dogmatic point of view. For the ecclesiastical organization as a whole was restored; every diocese was given a bishop to whom monasteries and foundations were subordinated; the metropolitan constitution was renewed—so that Charlemagne (768 to 814) could already list 21 metropolitans in the Empire as a whole in his testament of 811.
Implementation. The monarchs used reform councils and legislation to raise the level of ecclesiastical life; the bishops used diocesan synods and capitula episcoporum. The series of reform councils began in Austrasia with the Concilium Germanicum (probably 743), continued in Neustria (Soissons) in 744 and by 745 to 747 embraced the entire Empire. The important reform councils were: imperial Councils of Heristal (779) and Frankfurt (794), where Charlemagne tackled questions of dogmatic theology and recognized the institution of the private church; the Council of Aachen (816 to 817), which newly defined the status of canons; the Council of Paris (829).
On many occasions, ecclesiastical CAPITULARIES were promulgated in connection with the conciliar decisions. The Admonitio generalis of 798 was of fundamental importance for the discipline of the Church; and the Capitulare of 802, for the program of the new Emperor. There appears to have been no official collection of the numerous capitularies. From 829 it was customary to refer in the capitularies to the private collection of Abbot St. ANSEGIS of Fontenelle (d. 833), which had come into existence shortly before but which included barely 30 percent of the capitularies from the preceding 50 years; the Pseudo-Isidorean collection of capitularies of BENE DICT THE LEVITE claimed to be a continuation of this Ansegis collection. Of importance for the life and practice of the Church were the capitula episcoporum, episcopal instructions to the diocesan clergy that often exerted an influence far beyond the time and diocese of the promulgator (THEODULF OF ORLÉANS, Chaerbald of Lüttich, Hincmar of Reims).
Collections of Canon Law. When ecclesiastical regulations had been unified, the general collections regained prestige. This no doubt was due to their practicability and suitability, as well as to a newly awakened esteem for ecclesiastical authority, particularly that of the ancient plenary councils and papal decretals. Capitularies and councils made extensive reference to the general collections, and Pope Adrian I delivered to Charlemagne in 774 a model code that contained the councils and the collection of Decretals of DIONYSIUS EXIGUUS (i.e., Dionysio-Hadriana). The QUESNELLIANA can be traced in Carolingian capitularies in 755 (Monumenta Germaniae Historica: Capitularia 14); from 789 (Monumenta Germaniae Historica: Capitularia 22), and perhaps even from 779, until about 830 the Dionysio-Hadriana or the Dionysiana was the almost exclusive source; in West Frankish capitularies, the Hispana appeared before the middle of the 9th century. Similarly in the councils after 800, the Dionysio-Hadriana was evidently the standard collection (Aachen 836, perhaps also the DACHERIANA); but it is doubtful whether the HADRIANA was granted official recognition at the Council of Aachen of 802. Pope Nicholas I (858 to 867) certainly spoke of the Hadriana as the Codex Canonum (P. Jaffé, Regesta pontificum romanorum ab condita ecclesia ad annum post Christum natum 590–882, ed. P. Ewald, 2785). Dacheriana was compiled about the year 800(?) from the Hadriana and the Hispana, and is considered to be the real achievement of the Frankish reform, whose efforts slackened about 830. Among the reform collections must finally be listed the FALSE DECRETALS (PSEUDO-ISIDOREAN FORGERIES), which, however, together with the Roman law brought to light in the 9th century, had but little influence on Carolingian Canon Law.
With the return to the ancient Canon Law, there was a corresponding revision of the penitential regulations. The provincial synods of Reims, Arles, Châlon-sur-Saône, and Tours were held at the command of Charlemagne in 813 and their decisions were officially compiled (this being the only known instance of a systematic collection of decisions of Carolingian reform synods). They were attempting to counteract the confusion created by the various contradictory penitentials, and to direct attention back to the general collections. In 829 a direct order was given to do away with the penitentials, and attempts were made to replace them with new ones. Witness to this reform effort is the penitential of Bishop Haltigar of Cambrai (817 to 831), compiled probablyPage 43 | Top of Article about 829. RABANUS MAURUS (d. 856), whose special concern was the canonical instruction of the clergy, compiled two penitentials of a similar character (841 to 847;853), based mainly on the Hadriana and the Hispana. But the influence of the old penitentials could not be eradicated, and the attempt as well to reinstate the poenitentia publica that had been supplanted by private confessional practice had only a short-lived success.
Carolingian Theory of Canon Law. There was no ecclesiastical jurisprudence as such in Carolingian days. A start was made on a theory of the sources of law, but there was a lack of theoretical and systematic investigation and of scholarly institutions. Writings on Canon Law were occasioned usually by ecclesiastical and political controversies; and it is significant that it was precisely men involved in politics and in theological controversy who occupied themselves with Canon Law.
The older generation (centering around Charlemagne), under the stimulus of newly flourishing theology, began to devote attention to the role of authority (auctoritas) and reason (ratio), and was chiefly interested in reform, thereby collaborating with the monarch. The Spanish-born Bishop THEODULF OF ORLÉANS (d. 821), a man well informed in legal process, produced influential capitularies; Bishop Remedius of Chur (d. c. 806) attempted in his Capitula to effect a synthesis of Roman, Germanic, and Frankish penal law; Bishop Ghaerbald of Lüttich (d. 809), put the instructions of Charlemagne into practice.
The faltering regime of Louis the Pious and numerous lay encroachments divided the empire into factions. Some men, e.g., the theologically trained Bishop Jonas of Orléans (d. 843), felt themselves protectors and guides of the King; Jonas remained loyal to Emperor Louis when the Emperor's elder sons rose against him. On the opposing side stood Archbishop Agobard of Lyons (d. 840), a representative of "Carolingian rationalism." He called upon Emperor Louis to extend the law of the Franks to the entire Empire in order to eliminate the multiplicity of indigenous tribal laws (principle of personal law). For him, to act against the canons meant to act against God, and he earnestly called for the restitution of all ecclesiastical property held by laymen. Agobard supported Louis's sons and lost his archdiocese, in which, however, his faithful assistant, Deacon Florus (d. c. 860), a man thoroughly familiar with Canon Law and Roman law, continued to be active. He was certainly echoing his master when he demanded the privilegium fori for clerics and episcopal jurisdiction. The most prolific scholar in questions of Canon Law seem indeed to have been Archbishop HINCMAR OF REIMS (d. 882). Despite the considerable number of his writings on the subject of Canon Law, he does not present an accurate picture of the Canon Law of that time. His chief concern was to strengthen the power of metropolitans and synods, and it was only reluctantly that he allowed Pope Nicholas I the last word in their controversy. The achievement of the Carolingian canonists was that they again enhanced the prestige of the canonical traditions of the ancient Church. They did indeed mold tradition according to their ideas, but without them the Latin Church might have dissolved into individual churches; at least the ties of unity would have been dangerously loosened.
Bibliography: General. Maassen. É. LESNE, La Hiérarchie épiscopale 742–882 (Lille 1905); Histoire de la propriété ecclésiastique en France, 6 v. in 8 (Lille 1910–43), v.2. A. WERMINGHOFF, Verfassungsgeschichte der deutschen Kirche im Mittelalter (2d ed. Leipzig 1913). H. VON SCHUBERT, Geschichte der christlichen Kirche im Frühmittelalter (Tübingen 1921). R. SOHM, Das altkatholische Kirchenrecht und das Dekret Gratians, ed. E. JACOBI and O. MAYER (Munich 1918). P. FOURNIER and G. LEBRAS, Histoire des collections canoniques en occident depuis les fausses déscrétales jusqu'au Décret de Gratien, 2 v. (Paris 1931–32). E. RÖSSER, Göttliches und menschliches, unveränderliches und veränderliches Kirchenrecht bis zur Mitte des 9. Jahrhunderts (Paderborn 1934). A. VAN HOVE, Commentarium Lovaniense in Codicem iuris canonici 1, v. 1 (Mechlin 1928– ). A. M. STICKLER, Historia iuris canonici latini: v.1, Historia fontium (Turin 1950). W. WATTENBACH, Deutschlands Geschichtsquellen im Mittelalter. Vorzeit und Karolinger, Hefte 1–4, ed. W. LEVISON and H. LÖWE (Weimar 1952–63) supplement. Die Rechtsquellen, ed. R. BUCHNER (1953). G. LE BRAS et al., eds., Histoire du droit et des institutions de l'Église en Occident (Paris 1955– ) v.1 Prolégomènes. G. LE BRAS, Institutions ecclésiastiques de la chrétienté médiévale (Histoire de l'église depuis les origines jusqu'à nos jours 12; 1959). W. M. PLÖCHL, Geschichte des Kirchenrechts, v.1 (2d ed. Vienna 1960). H. E. A. FEINE, Kirchliche Rechtsgeschichte (4th ed. Cologne 1964– ) v.1. J. J. RYAN, "Observations on the Pre-Gratian Canonical Collections: Some Recent Work and Present Problems," Congrès de Droit Canonique Médiéval Louvain et Bruxelles, 22–26 Juillet (Louvain 1959) 88–103. 8th Century. E. LOENING, Geschichte des deutschen Kirchenrechts, 2 v. (Strasbourg 1878) v.2. F. ZEHETBAUER, Das Kirchenrecht bei Bonifatius (Vienna 1910). H. NOTTARP, "Sachkomplex und Geist des kirchlichen Rechtsdenkens bei Bonifatius" in Sankt Bonifatius: Gedenkgabe zum zwölfhundertsten Todestag (Fulda 1954). T. SCHIEFFER, Winifried-Bonifatius und Die christliche Grundlegung Europas (Freiburg 1954). G. LE BRAS, "Pénitentiels," Dictionnaire de théologie catholique, ed. A. VACANT et al., 15 v. (Paris 1903–50) 12.1:1160–79. J. T. MCNEILL and H. M. GAMER, trs., Medieval Handbooks of Penance (New York 1938). L. BIELER, ed., The Irish Penitentials, app., D. A. BINCHY (Scriptores Latini Hiberniae 5; Dublin 1963). Reform. U. STUTZ, "Das Karolingische Zehntgebot," Zeitschrift der Savigny-Stifung für Rechtsgeschichte, Germanistische Abteilung 29 (1908) 180–224. H. FICHTENAU, Das karolingische Imperium (Zurich 1949). É. DELARUELLE, "Charlemagne et l'Église," Revue d'histoire de l'Église de France 39 (1953) 165–99. H. BARION, Das fränkisch-deutsche Synodalrecht des Frühmittelalters (Bonn 1931). C. DE CLERCQ, La Législation religieuse franque …, 2 v. (Paris-Antwerp 1936–58). J. SEMMLER, "Reichsidee und kirchliche Gesetzgebung," Zeitschrift für Kirchengeschicte 71 (1960) 37–65. F. L. GANSHOF, Was waren die Kapitularien? (Weimar 1961). H. HÜRTEN, "Alkuin und der Episkopat im Reiche Karls des Grossen," Historisches Jahrbuch der Görres-Gesellschaft 82 (1963) 22–49. W. A. ECKHARDT, Die KapitulariensammlungPage 44 | Top of Article Bischof Ghaerbalds Von Lüttich (Göttingen 1955). J. RAMBAUD-BUHOT, "Une Collection canonique de la réforme carolingienne," Revue historique de droit français et éranger 33(1956) 50–73. Theory. For individual authors, see W. WATTENBACH, Deutschlands Geschichtsquellen im Mittelalter. Vorzeit und Karolinger, Hefte 1–4, ed W. LEVISON and H. LÖWE (Weimar 1952–63), with extensive bibliography. J. FLECKENSTEIN, Die Bildungsreform Karls des Grossen (Freiburg 1953). L. WALLACH, Alcuin and Charlemagne (Ithaca, New York 1959), reviewed by H. LÖWE in Göttingische gelehrte Anzeigen 214 (1962) 144–53. H. DÖRRIES, "Die geistigen Voraussetzungen und Folgen der Karolingischen Reichsteilung 843" in Der Vertrag von Verdun 843, ed. T. MAYER (Leipzig 1943). J. DEVISSE, Hincmar et la loi (Dakar 1962). H. BACHT, "Hinkmar von Reims" in Unio Christianorum: Festschrift für Erzbischof Dr. Lorenz Jaeger (Paderborn 1962).
3. False Decretals To Gratian
The Carolingian reform had striven to unify and restore Canon Law: composite collections had been for the most part eliminated; and the return to the ancient texts of the universal law, approved by the Church of Rome (Dionysio-Hadriana) had restored to their place of honor the traditional rules respecting the ecclesiastical hierarchy, penitential discipline, the institution of marriage, and judicial order. However, the Church was still undergoing many trials: seizure of ecclesiastical property by secular rulers, abuses of the privilege of the forum, and all sorts of obstacles to the exercise of episcopal power.
It was in this context that the Isidorian forgeries (FALSE DECRETALS) were put into circulation (847 to 857) alleging incontestable authorities for texts decreeing much needed reforms. Generally faithful to traditional law, the False Decretals innovated on certain points and exercised a considerable influence on canonical literature. They reinforced the episcopal power, generalized the principle of appeal to Rome in important cases, broadened the privilege of the forum, regularized judicial procedure (Spoliatus ante omnia est restituendus), and reemphasized the sacred character of ecclesiastical property.
From the 10th to the middle of the 11th century, Canon Law underwent a period of decline; it suffered, in effect, from the weakening of the authority of the Holy See, which resulted from the interference of the Roman aristocracy and the Germanic emperors. It was characterized by an extreme fragmentation, as was the political power of the day, which was bound up with the parceling out of feudal lands, the contemporary culture, which was then sheltered in monasteries, and the economy itself, which was essentially tied to the land and was domestic and stagnant. The Church and its law were narrowly dependent on these concrete conditions; it underwent a partial laicization through the system of private churches (Eigenkirchen) and had to depend on the local authorities to carry out its moral mission, slowly and with difficulty. This latter function had to be accomplished in the most diverse areas: in struggles against superstition, immorality and violence; in the defense of the lower classes; etc. Progress was neither uniform nor constant, often being compromised by upheavals, wars, primitive customs, and such calamities as famines and epidemics.
In the absence of an active and respected central power, the most noteworthy canonical works of this era were the local collections, of limited scope, composed by private authors. These generally manifest no critical sense in the choice of texts, which they treat with extreme liberty (by interpolations, false attributions, composition of apocrypha) with a view to adapting them to local needs or their own reforming intentions. In the midst of an abundant but uneven output, several works merit particular mention: in Italy, the collection called ANSELMO DEDI CATA, COLLECTIO, dedicated to Archbishop Anselm of Milan (882 to 896) and the Collectio libri quinque (1015 to 1020); in Germany, the Libri duo de synodalibus causis et disciplinis ecclesiasticis, dedicated by Regino of Prüm (d. 915) to Archbishop Atto of Mainz; in France, the Collection of ABBO OF FLEURY (988 to 996), addressed to King Hugh and King Robert. But the most celebrated work of this period is the Decretum of BURCHARD, bishop of Worms (1000 to 1025), which sets forth the principles that should govern imperial reform. A protegé of Emperor Henry II, Burchard relied on the support of the secular powers for reorganizing the Church and maintaining the discipline of the clergy and of the Christian people.
The Gregorian Reform. The optimism of Burchard nonetheless lacked foresight, for a true reform of Christian society could not be effectively brought about unless it was begun from the very center, free from self-interested interventions of secular powers, and carried out in line with the spiritual mission of the Church.
Such would be the principles animating the GREGORI AN REFORM: the primacy of the Holy See, the independence of the Church, and fidelity to tradition. The decree of Nicholas I (1059) confining papal elections to the cardinals constituted a decisive step in the emancipation of pontifical power. Now that the Church was free at the summit and the supreme authority of the sovereign pontiff was restored, indispensable reforms could be progressively extended to all Christendom.
Gregorian teaching made the sovereign pontiff the primary source of ecclesiastical law (Dictatus Papae 17). He exercises authority through councils, over which he presides and whose decisions he approves, and through written responses (decretals), which he gives wheneverPage 45 | Top of Article he is consulted on a disputed point. The pope also guarantees the authority of the texts expressing the common law of the Church. In order to restore to honor the authentic sources of a canonical tradition that they claimed was continuous, the Gregorians carried out research in libraries and archives in Rome and throughout Italy. They unearthed a great number of new fragments, favorable to the rights of the Roman Church (LIBER DIURNUS, Ordines Romani, and, above all, decretals, collected in the Britannica) or capable of providing support for reforming measures [ancient councils, patristic texts, Roman law (the Authentica and Pandecta)]. These texts supplemented the Gregorian collections, the best known of which are the DICTATUS PAPAE, attributed to Gregory VII; the Breviarium of ATTO OF VERCELLI; the Collectio Libri Duo; the Collection of SEVENTY-FOUR TITLES; and the collections of ANSELM II OF LUCCA and of Cardinal Deusdedit (DEUSDEDIT COLLECTION).
The controversies over the burning issues of the day (the power of the papacy, the validity of Sacraments conferred by simoniacal clergy, law investiture, oaths, reordination, etc.) provoked an abundant polemical literature. Many theological questions are treated in these writings, and the argumentation is rarely objective and dispassionate, but the discussions favored the progress of canonical science. Authorities are discussed, compared, interpreted; their particular force is evaluated and related to the jurisdictional primacy of Rome.
Urban II to Gratian. After the reign of Gregory VII (1073 to 1085), precisely because the principle of the primacy had triumphed to such an extent that it had obscured the original doctrinal aspects of the reform, it became possible to moderate the overly rigorous measures of the Gregorian reform by the frequent use of dispensations and the reconciliation of guilty clerics, particularly in the pontificates of Urban II (1088 to 1099) and Paschal II (1099 to 1118). But the initial indulgence of Urban II was not approved by some, such as BONIZO OF SUTRI, who in his Liber de vita christiana (1089 to 1095) showed himself a partisan of the rigorist Gregorian position, or by the anonymous author of the Britannica (c. 1090).
On the other hand, the POLYCARPUS of Cardinal Gregory (1104 to 1013), while Gregorian in tendency, reflects the more conciliatory influence of IVO, bishop of Chartres (1091 to 1116), the classic representative of the French canonical tradition. Favorable to reform, respectful of the papal primacy, Ivo was no less careful to maintain peaceful relations between Church and State, with prudence, moderation, and realism. He accepted lay investiture on condition that it be limited to temporalities and conferred only after legitimate election and consecration; he suggested thereby the solution that had been adopted in England (1102) and in France (1107), and which at Worms (1122) would reestablish peace between the papacy and the Empire. An enlightened pacifist, Ivo wanted to limit recourse to war and to extend the machinery of peace (PEACE OF GOD), while admitting the right of recourse to arms to defend rights unjustly violated. The divorce of King Philip I (1092) and other cases that were submitted to him gave him an opportunity to develop more precisely the doctrine of marriage (Decretum, VIII–IX; Panormia VI–VII). With regard to ecclesiastical law, Ivo counseled tempering strict justice with mercy, for the supreme law of ecclesiastical government is of the pastoral order: the salvation of souls and the building up of the kingdom of God in charity, which is the fulfillment of the law (Prologue, Patrologia Latina, ed. J. P. Migne, 161:47C, 58D). The Liber de misericordia et de justitia of ALGER OF LIÈGE (c. 1105) expressed the same ideal.
A conservative and moderate spirit, Ivo did not reject indiscriminately the traditional texts of the methodical collections (the Decretum of BURCHARD and the PENI TENTIALS) condemned by the Gregorians, but strove to bring them into harmony with the new trends and authorities, drawing inspiration from and adapting rules laid down by BERNOLD OF CONSTANCE (1054 to 1100). The latter had set forth excellent principles on the sources of Canon Law and the rules of interpretation and concordance of texts. He urged canonists to reject apocrypha, analyze each fragment according to circumstances of time, place, and persons that occasioned its composition; then to determine the nature of the rule laid down, its permanent or temporary character. To these rules, as adopted and developed by the prologue of Ivo (Patrologia Latina 161:47–60), the preface to Abelard's Sic et Non (Patrologia Latina 178:1339–49), c. 111 to 1117, added remarks of a semantic and dialectic order that were to profit canonists and theologians alike. In this manner, canonical science was gradually organized, arming itself with a method suitable for resolving the conflicts of authorities. The choice of texts and arguments became rigorous, and juridical rules were formulated with more precision. Besides, the renaissance of Roman law at Bologna at the end of the 11th century exerted a happy influence on canonists.
Byzantine Law to 1054. From the 7th century until the break of July 16, 1054, the history of the Canon Law of the Byzantine Church was dominated by three factors: the fixing of legislation, the composition of systematic collections, and the growth of canonical science.
In 691 to 692 the QUINISEXT SYNOD (in Trullo) met at Constantinople to revise and complete the legislationPage 46 | Top of Article of the fifth and sixth ecumenical councils (Constantinople, 553, 680 to 681). The 102 canons then promulgated were for the most part a repetition of previous legislation, but canon two was of decisive importance for the Canon Law of the Oriental Churches; it enumerated the sources of this law to the exclusion of all other documents, so much so that the collections produced according to its specifications constitute the common fontes of Oriental Canon Law. After the councils of Nicaea (787) and Constantinople (869) the Orient had no general councils; ecclesiastical questions were henceforth decided by the patriarch of Constantinople (with his synod of bishops located in, or visiting, the capital), or by the secular authorities (legislation of the basilicas).
The composition of systematic collections, begun c. 535 with the Collection in 60 Titles and the various Nomocanones, was continued in new collections. The most important of these collections is the Nomocanon in 14 Titles, composed c. 630 by the jurisconsult Enantiophanes. As its name indicates, the work resembles both the civil laws (third part) and ecclesiastical documents (second part); the first part gives the titles that divide the canonical material. A second edition of this work dates from 883; it is generally attributed to the patriarch PHOTIUS (857 to 886) and was recognized in 920 as the official collection of the Church of Constantinople. It was brought up to date by Theodore Bestès in 1080. (See NOMOCANON.)
The canonical science of the Oriental Church is noteworthy for the composition of systematic commentaries, expounding the ensemble of legislation then in force, both canonical and imperial. The first commentator seems to have been Theodore Prodramus (8th century); the most famous are John Zonaras, Alexis Aristenes (beginning of the 12th century), and Theodore BALSAMON. The method followed by these authors was inspired by the rules of jurisprudence of Justinian. After the paraphrase, giving the general sense of the text, come the scholia: explanations of difficult terms, and circumstances of composition. Then the author compares, if need be, decisions relative to the same topic and points out their application. He proposes questions and cases and gives their solutions, illustrated by patriarchal decrees and imperial constitutions. It is incontestable that the canonical science manifested by the great Oriental commentators surpasses that of contemporary Western canonists, who were still seeking a properly scientific method.
Bibliography: P. FOURNIER and G. LEBRAS, Histoire des collections canoniques en occident depuis les fausses décrétales jusqu'au Décret de Gratien, 2 v. (Paris 1931–32) 1:127–456; 2:1–352. A. VAN HOVE, Commentarium Lovaniense in Codicem iuris canonici 1, v.1–5 (Mechlin 1928–) 1:157–64, 216–33, 293–342. A. M. STICKLER, Historia iuris canonici latini:, v.1, Historia fontium (Turin 1950) 67–72, 117–95, 407–10. S. KUTTNER, "Liber Canonicus: A Note on Dictatus Papae c. 17," Studi gregoriani, ed. G. B. BORINO 2 (1947) 387–401. Monumenta Germaniae Historica: Libelli de lite (Berlin 1826–). Sacred Congregation for the Eastern Church, Codificazione canonica orientale: Fonti (Vatican City 1930–), ser.1, fasc. 8. Studi storici sulle fonti del diritto canonico orientale. C. DE CLERCQ. Dictionnaire de droit canonique, ed. R. NAZ, 7 v. (Paris 1935–65) 2:1170–84. A. WUYTS, Catholicisme 3:1109–16. Traditio, an annual with summary of recent bibliography.
4. Classical Period
The time from the Decretum of GRATIAN (c. 1140) to the death of the canonist JOANNES ANDREAE (1348) was the classical period in the history of Western Canon Law; for the scientific study of the canons of the Church was begun by Gratian and reached its climax in the works of Joannes Andreae. During this period the Church, for the first time, promulgated official collections of universally binding laws: the Decretals of GREGORY IX in 1234; the LIBER SEXTUS in 1298; and the CLEMENTINAE in 1317. These remained the only authenticated collections of decretal legislation and became the center of the CORPUS IURIS CANONICI that governed the Western Church from 1582 until the CODE OF CANON LAW of 1917.
Before the Concordia discordantium canonum or Decretum of Gratian there was available the confusing wealth of written traditions described in the preceding sections of this article. Time and again efforts had been made to reform and unify this tradition (see CANONICAL COLLECTIONS BEFORE GRATIAN), most strikingly in the Decretum of BURCHARD OF WORMS (c. 1023), but none of these was regarded as adequate by the reforming party that came to the fore in the Church of the 11th century. Coherence and universality were lacking, and the reformers turned to more ancient sources (see GREGORIAN REFORM). However, the preoccupations of these reformers led them to suppress as contradictory of papal authority a great portion of the Franco-Germanic tradition. This led to greater confusion. Most of the Decretum of Burchard reappeared in the influential Decretum (c. 1096) of IVO OF CHARTRES; the situation was complicated by competition between varying types of collections and by numerous contradictions between texts appealed to by champions of reform and those advanced by their opponents. At the turn of the 11th century, as the fires of the investiture controversy died away and the reformers began to understand that the enforcement of full reform would be impossible in practice, there was a search for a workable system of interpretation of texts that would at once make for unity within the Church and allow a reconciliation between the Roman and the suspect Franco-GermanicPage 47 | Top of Article traditions. The chief figures in this movement were BERNOLD OF CONSTANCE (De excommunicatis vitandis, c. 1091), Ivo of Chartres (prologue "De consonantia canonum" to his Panormia, c. 1096), and ALGER OF LIÈGE (Liber de misericordia, c. 1105). Adapting certain principles of Biblical and rhetorical hermeneutics to the study of the canons, they separated precept from counsel and principles of eternal validity from those affected by conditions of time, place, or person.
This quest of a sure way through the thickets of canonical tradition was paralleled by efforts of theologians with respect to their sources; as had been made clear by LANFRANC in his criticism of the Eucharistic theology of BERENGARIUS OF TOURS, the problem of the authenticity, reconciliation, and interpretation of sources was crucial also to theology. It was, in fact, a theologian who gave the final sheen to the rules of interpretation and principles of textual criticism adumbrated by Bernold and Ivo and practiced to some extent by Alger. About 1115 to 1117 Peter ABELARD developed these principles in a theological setting in the preface of his Sic et Non (Patrologia Latina 178:1344–49), a treatise in which patristic texts are played off dialectically against one another in order to arrive at a balanced, coherent tradition. A method of scientific theology was now set, and it was claimed at once for the canonical field. Whether or not Gratian decided in or about 1120, independently of Abelard, to compile a rigorous summa of canonical tradition along the lines suggested by his predecessors, he undoubtedly received a stimulus at some point from Abelard's incisive rendering of their principles, and in particular from Abelard's insistence, apparently original, on working out from context, phraseology, etc., the precise meaning of a term or an idea in a given text. Applying Abelard's dialectical method to the mass of texts provided by existing collections, Gratian proposed texts for and against chosen propositions and sought to penetrate textual divergences by defining terms and applying relentlessly the rules of interpretation. The result (c. 1140) was his Concordia discordantium canonum, the foundation of the classic law of the Church. To arrive at this first scientific formulation of the teaching of the canons, Gratian doubtlessly was spurred on by the presence in Bologna of a vigorous school of civil law, which, under IRNERIUS, had since 1100 contributed to the revival of the study of classical Roman law. Gratian then demonstrated in the Decretum that it was possible to mold a seemingly amorphous mass of canons into a system of jurisprudence that could compare with the enviable order of the civilian corpus.
Stages of the Classical Period. As a synthesis of the patristic, conciliar, and papal teaching on the organization of the Church (the hierarchy, clerical discipline, excommunication), on the social structure of Christianity (matrimony, usury, relations of spiritual and secular authorities), and on the Sacraments, worship, and liturgy, the Decretum provided canonists with a mine of solid information and provided the Church with sure bases on which to build an ordered array of institutions. By 1150 it was in use in schools and synods; although never "received" by the Church as an authentic collection, from the time of Alexander III (1159 to 1181) onward it was the manual of the Roman Curia. The first impact of the Decretum was on the scholastic centers. Commentaries and glosses on and summaries of the Decretum began to appear, first at Bologna, then in France and England (see DECRETISTS), notably, to mention only a few, from PAU CAPALEA, Gratian's own disciple; Roland Bandinelli (AL EXANDER III); Stephen of Tournai; RUFINUS; SICARDUS OF CREMONA; also many anonymous authors (e.g., the Summa Parisiensis, Summa Monacensis); and HUGUCCIO (HUGH OF PISA). If the Decretum set in motion a wave of canonistic writing, it no less occasioned a flood of questions. On many points the solutions Gratian offered were fragmentary or hesitant and called for development; in some areas of Europe confusion was caused by a lack of harmony between local custom and the tradition of the Church as represented in the Decretum. The papacy, as a result of the Gregorian Reform and of the tradition mirrored in the Decretum itself, had emerged as the undisputed guardian and master of Church law, and was now called upon to offer solutions to these problems. From the mid-12th century onward thousands of replies to cases appeared from the papal chancery, particularly between 1159 and 1216 (from Alexander III through Innocent III); in the meantime the masters in the schools posed new questions, suggested solutions other than those advanced by Gratian, and provided the papacy with arguments upon which to draw.
This papal and canonistic activity introduced the second phase of the classical period. In order to implement the Decretum and to continue its concordia, canonists began about 1160 to make collections of papal, conciliar, and patristic material overlooked by or unknown to Gratian and, in particular, of the new papal replies or DECRE TALS. These collections of Decretales extravagantes (i.e., circulating distinct from the Decretum) were put together in most parts of Europe, the best known coming from Spain, Portugal, France, Italy, and England (see DECRE TALS, COLLECTIONS OF). Many were of a private nature and loosely ordered; the first semisystematic collection was that of Bernard of Pavia between 1177 and 1179 (Collectio Parisiensis II), covering decretals from Honorius II (1127 to 1130) to Alexander III. After the Third Lateran Council more systematic collections made their appearance, notably, in England (Appendix Concilii Lateranensis III), France (Bambergensis), and Italy (Lipsiensis).Page 48 | Top of Article The high point was reached (1191 to 1192) when Bernard of Pavia published his Breviarium extravagantium, an arrangement in five books of about 900 decretals issued between 1140 and 1191; the headings given the books, iudex, iudicium, clerus, connubia, crimen, originally were a mnemonic aid for memorizing the main subject of the books. This was soon accepted by the schools as a definitive collection and became the Compilatio Prima of the QUINQUE COMPILATIONES ANTIQUAE.
The third phase of classic canonistics began with canonists who, in preference or in addition to making glosses on the Decretum, composed commentaries on the "new" decretals of the Compilatio Prima and kindred compilations. Peter of Spain wrote an apparatus on Bernard of Pavia's collection as early as 1193, the Englishman RICHARD DE MORES four or five years afterward, and Bernard himself in 1198. Apparatuses followed from ALANUS ANGLICUS, LAWRENCE and VINCENT OF SPAIN, Tancred JOHN OF WALES, etc., and were joined by writings on the later compilations. Although there was a lull in decretist activity as such after 1191 to 1192, studies on Gratian's Decretum resumed with a new vigor when it was perceived that a harmony had to be established between the Decretum and the new compilations, glosses, and apparatuses. The period from 1210 to 1220 was in fact one of intense decretist as well as decretalist production at Bologna, many of the decretalists mentioned above being the authors also of decretalist writings, e.g., Alanus Anglicus, Lawrenc of Spain, and John of Wales. It proved to be the final, brilliant moment of the decretist epoch. In 1216 JOANNES TEUTONICUS, the author also of an apparatus on the Compilatio tertia antiqua and one on Compilatio quarta antiqua, published the gloss on the Decretum that became the ordinaria. Summing up more than a half-century of decretist learning, this gloss announced in effect the end of the period of canonistic research. The range of the decretal legislation of Innocent III (1198 to 1216) and of the constitutions of the Fourth Lateran Council (1215) had shown once and for all that there was now a living law of the Church and that this called for the same canonistic attention that hitherto had been given to the traditions enshrined in the work of Gratian.
It was also becoming clear that the time had come for a new concordia—not, as in Gratian's day, of discordantium canonum, but of collectionum discordantium. By 1230 there was such a profusion of decretals and variety of collections that Gregory IX commissioned and then authenticated (1234) a definitive collection of decretals not included in or coming after Gratian's Decretum (see GREGORY IX, DECRETALS OF). Gratian's Decretum, however, retained its place, and BARTHOLOMEW OF BRE SCIA brought the glossa ordinaria of Joannes Teutonicus into line with the "new" universal law from about 1240 to 1245. The spread of a uniform law of the Church was now possible and henceforth juridical activity concentrated on the consolidation of a strongly hierarchical, centralized, closely regulated society. There was a great flowering in the next half-century of glosses, commentaries, summae, lecturae, and reportoria on the decretals, chiefly from Sinibaldus Fieschi (INNOCENT IV), Godfrey of Trani, BERNARD OF PARMA (glossa ordinaria, before 1241), BERNARD OF MONTMIRAT (Abbas antiquus), HOS TIENSIS, and William DURANTI THE ELDER (see DECRET ALISTS).
Of course decretal legislation was continued after 1234: Gregory IX himself published decretal letters, as did most of the succeeding popes. Besides, the two Councils of Lyons (1245, 1274) published constitutions. From time to time collections of this new material were made (e.g., three collections of his own decretals by Innocent IV), and special glosses were composed (e.g., by BER NARD OF COMPOSTELLA the Younger on the Novellae of Innocent IV; by Duranti the Elder on the Novellae of Gregory X); but until the Liber Sextus (also called the "Sext") of Boniface VIII cleared the air in 1298, there was an ever-increasing problem of the relationship of these new decretals to the universal legislation established by Gregory IX. A great part of the Sext was legislation especially composed to meet new needs or in mitigation of decretal and conciliar legislation since 1234. Canonical science, which had tended to rest on its laurels after the masterly Summa (1253) and the exhaustive Lectura (c. 1270) of Hostiensis and Speculum iudiciale of Duranti the Elder (1272; 1287), now stirred itself once more. With the Sext, in fact, the classical period of Canon Law entered its final phase. Although the CLEMENTINAE, promulgated some 19 years later by John XXII, also occasioned much canonical activity, the Sext was in effect the last great collection of the classical age, and it led to a flow of brilliant glosses, apparatuses, etc., from such canonists as GUIDO DE BAYSIO, JOHN LE MOINE, William of Mont Lauzun, Zenzelinus de Cassanis, Petrus Bertrandus, and ALBERIC OF ROSATE.
With Joannes Andreae the golden age of canonistic scholarship came to an end. The great Bolognese lay canonist produced, among other works, two glossa ordinaria (one on the Sext, c. 1301, and on the Clementinae, 1322). Moreover, in his Novella Commentaria on the Decretals of Gregory IX, completed in 1338, Joannes Andreae surveyed the whole of decretalist literature from the Quinque Compilationes Antiquae onward and arranged a century of glosses on the decretals into a coherent, enduring apparatus. The classical period was at an end, and in Joannes it had its last representative and its first literary historian. The black death, which claimed Joannes Andreae in 1348, thinned the ranks of canonists and ofPage 49 | Top of Article scholarship in general; and the Great Schism soon disrupted that unity of Christendom that the classic age had labored to build. Canonical science never quite recovered afterward.
Aspects of the Classical Period. The ideal of a concordia discordantium canonum so succesfully pursued by Gratian at Bologna soon attracted a following all over Europe. By the end of the 12th century there were flourishing schools of Canon Law in France (especially at Paris) and in England (chiefly at Oxford, where John of Tynemouth, Simon of Southwell, and Master Honorius were the leaders, but also to some extent at Northampton and in the cathedral schools of Exeter and Lincoln). From the early 13th century on a faculty of Canon Law was a normal part of the studia generalia then coming to life in France (Orleans, Angers, Montpellier, Toulouse), and Spain (Palencia, Salamanca, Valladolid), and Italy (Padua, Vercelli, Siena, and Piacenza). Bologna, the nursery of canonists, never yielded her position, although powerful centers (e.g., Padua in the 14th century) were to constitute a challenge. Bologna's fertility is best seen, perhaps, around 1200, when a host of decretists and decretalists—Italians, Germans, Spaniards, Anglo-Normans, Welsh—worked side by side to produce numerous collections and apparatuses.
For most of the 13th century the Decretum was the basic or ordinary text in these schools, and lectures on it took place in the morning period. When the Decretals of Gregory IX appeared, they were read extraordinarie in the afternoon sessions and generally did not achieve the "ordinary" status of the Decretum until the Sext (1298) and Clementinae (1317) were introduced as "extraordinary" books. In some studia, however, e.g., Oxford, there was a changeover from the Decretum to decretals before 1300, the Decretum being relegated to the former "extraordinary" place of the decretals. Lectures on the ordinary text were given by professors and regent doctors; but when regent doctors were scarce, exceptional bachelors might be enlisted to conduct "quasi-ordinary" lectures; as a rule, the extraordinary texts were entrusted to the bachelors. In some universities there were endowed chairs, or at least a fixed stipend, for the ordinary teachers, but in others each professor had to negotiate a contract with his students as a body; bachelors, however, were not entitled at any point to a fee. The course for the license to lecture extraordinarie or cursorie (baccalaureate) generally comprised three years of civil law, two years on the Decretum, and a complete study of the decretals; for the doctorate a further three or four years were required, during which the bachelor extraordinarie, engaged in public disputations, and stood in as ordinarius at least once for each regent doctor. After the final doctorate examination there was a compulsory period, normally two years in duration, of ordinary teaching as a regent doctor.
The statutes of Canon Law faculties generally echo those of the faculties of the older (though to canonists, inferior) science of civil law. Canon Law, indeed, owed an immense debt to Roman law; civilians, on the other hand, armed with a code of laws stabilized in the 6th century, depended little on canonists, although they did not ignore the principles underlying Canon Law and ecclesiastical institutions. Classic Roman law had enjoyed the favor of the Roman Curia from the earliest days, and in time many popes came to look on it as part of their heritage. However, the use to which it was put by imperial jurists, such as Peter Crassus during the investiture contest, occasioned a certain ecclesiastical reserve, which is to some extent reflected in Gratian's Decretum. But as glosses and commentaries multiplied on the Decretum, canonists often found it to their advantage to adopt techniques from the civilian glossators; and as questions increased and situations grew more complex, it became widely recognized that the classic Roman law could be profitably exploited in the interests of the public law of the Church for its theory of laws, its approach to justice, its teaching on contracts and pacts, its sense of the privileges of priesthood and of sacred places, its maxims and reflex principles. By 1220 canonists were studying Roman law as a matter of course; by mid-century the complete canonist was a doctor utriusque iuris; by 1300 a civil law degree was desirable before proceeding to Canon Law studies. With the development of ecclesiastical courts a knowledge of civil law procedures became imperative (see ORDINES JUDICIARII), and from 1170 onward various summaries and expositions of procedure were written for canonists, the most influential being those of Tancredus (1214 to 1216; later adapted by Bartholomew of Brescia about 1236), WILLIAM OF DROGHE DA (Oxford 1239), and William Duranti the Elder (Speculum iudiciale, 1272, 1287; later reworked by Joannes Andreae, Baldus, and others). The spread of the universal law, the growth of papal provisions, the development of episcopal curias, etc., naturally created a demand for canonists well versed in both laws. To counter career-seeking, Honorius III prohibited in 1219 the study of civil law to monks, priests, and beneficed clerks, but papal dispensations were not too difficult to obtain afterward. The ordinary canonist who attended Roman law schools probably would not be more than a simple clerk at the time, and would not come under the ban.
Relations between Canon Law and theology were on another footing. At the beginning of the 12th century the canons were regarded as a part of theology, and Gratian himself taught them at Bologna as "external theology."Page 50 | Top of Article But in establishing Canon Law as a science, Gratian, for all the theological source material in his Decretum, opened the way not only to a distinction of the science of Canon Law from that of theology, but also to a separation. There were, of course, decretists in the early period who were both canonists and theologians: Roland Bandinelli (Alexander III), Gandulpus, LABORANS, Huguccio (the latter a prime source for the theological learning of his day). Toward the end of the 12th century, however, canonists and theologians alike contributed to a widening gap between the two fields. If Sicardus of Cremona abandoned a discussion of the Eucharist "to the theologians," there were theologians who omitted to speak of Matrimony (on which there had been a cascade of decretals from Alexander III) and of Orders. From 1200 onward canonistic science concentrated more and more on institutional aspects of the Church, deriving little from the vigorous theological speculation that began to sweep Europe. The theologians, for their part, seemed content to allow that Canon Law govern worship, the administration of the Sacraments, the functioning of the ecclesial body. Richard Fishacre, who wrote the first commentary on Peter Lombard's Liber Sententiarum at Oxford (c. 1240 to 1243), borrowed freely from Raymond of Peñafort; St. Albert and St. Thomas were indebted to the Decretum and decretals.
One genre of canonical literature to which the classic age gave rise was to play a large part in the emergence of later moral theology. Through summae of penitential practice (later called Summae confessorum), the decrees of popes and councils and the doctrines developed by canonists on all aspects of domestic, social, and economic life were made available to priests often far removed from scholastic circles. The movement began about 1210 with ROBERT OF FLAMBOROUGH, an English penitentiary at St. Victor in Paris, and grew in strength after the pastoral reforms of the Fourth Lateran Council (1215). Its greatest exponents were the Dominicans RAYMOND OF PEÑAFORT (Summa de casibus, c. 1225; revised c. 1234) and JOHN OF FREIBURG (Summa confessorum, 1298). These Summae in turn inspired a host of manuals of the general pastoral care and of sacramental practice, such as the Oculus sacerdotis of WILLIAM OF PAGULA (c. 1320), the Manipulus curatorum of Guido de Monte Richerii (1333), and the Summa praedicantium of John of BROMYARD (1348). All these contributed in no small way to the spread of a knowledge of the universal law of the Church and to its universal observance.
Bibliography: G. LEBRAS, "Canon Law," in The Legacy of the Middle Ages, ed. C. G. CRUMP and E. F. JACOB (Oxford 1926) 321–61; Institutions ecclésiastiques de la Chrétienté médiévale (A. FLICHE and V. MARTIN, eds., Histoire de l'église depuis les origines jusqu'à nos jours (Paris 1935–) 12; 1959) 21–119. P. FOURNIER and G. LEBRAS, Histoire des collections canoniques en occident depuis les fausses décrétales jusqu'au Décret de Gratien, 2 v. (Paris 1931–32) 2:334–52. A. VAN HOVE, Commentarium Lovaniense in Codicem iuris canonici 1, v.1–5 (Mechlin 1928–); v.1, Prolegomena (2d ed. 1945) 1:343–77, 412–65. A. M. STICKLER, Historia iuris canonici latini:, v.1, Historia fontium (Turin 1950) 1:188–268. C. MUNIER, Les Sources patristiques de droit de l'Église du VIIIe au XIIIe siècle (Strasbourg 1957). S. KUTTNER, Repertorium der Kanonistik (Rome 1937); Studi e Testi, 71. S. KUTTNER, Harmony from Dissonance: An Interpretation of Medieval Canon Law (Latrobe, Pennsylvania 1960); "Papst Honorius III. und das Studium des Zivilrechts," Festschrift für Martin Wolff, ed. E. VON CAEMMERER (Tübingen 1952); "Bernardus Compostellanus Antiquus," Traditio 1 (1943) 277–340; "Notes on a Projected Corpus of Twelfth-Century Decretal Letters," ibid. 6 (1948) 345–51. S. KUTTNER and E. RATHBONE, "Anglo-Norman Canonists of the Twelfth Century," ibid. 7 (1949–51) 279–358. C. DUGGAN, Twelfth-Century Decretal Collections and Their Importance in English History (London 1963). S. KUTTNER'S introduction to reprinted edition of JOANNES ANDREAE, In quinque decretalium libros novella commentaria, 5 v. in 4 (Venice 1581; repr. Turin 1963). B. KURTSCHEID, "De utriusque iuris studio saeculo XIII," in Acta Congressus iuridici internationalis Romae, 1934, v.2 (Rome 1935) 315–24. H. RASHDALL, The Universities of Europe in the Middle Ages, ed. F. M. POWICKE and A. B. EMDEN, 3 v. (new ed. Oxford 1936) 1:87–175, 585–89. E. FOURNIER, "L'Enseignement des décrétales à la Faculté de Paris au moyen âge," appendix to L'Origine du vicaire-général et des autres membres de la curie diocésaine (Paris 1940) 367–75. J. DE GHELLINCK, Le Mouvement théologique du XII e siècle (2d ed. Bruges 1948) 416–510. A. M. LANDGRAF, "Diritto canonico e teologia nel secolo XII," Studia Gratiana 1 (1953) 373–413. S. STELLING-MICHAUD, L'Université de Bologne et la pénétration des droits romain et canonique en Suisse aux XIIIe et XIVe siècles (Geneva 1955). C. G. MOR, "Il 'miracolo' bolognese: La diffusione del metodo scientifico della scuola di Bologna nel secolo XII," Studi e memorie per la storia dell'Università di Bologna, new series 1(1956) 161–71. P. MICHAUD-QUANTIN, Sommes des casuistique et manuels de confession au Moyen Âge (XII–XIV siècle) (Louvain 1962). L. E. BOYLE, "The Curriculum of the Faculty of Canon Law at Oxford in the First Half of the 14th Century," in Oxford Studies Presented to Daniel Callus (Oxford 1964) 135–62. P. LEGENDRE, La Pénétration du droit romain dans le droit classique de Gratien à Innocent IV (Paris 1964). Valuable bibliographies and notes in the Bulletin of the Institute of Research and Study in Medieval Canon Law in Traditio 11– (1955– ). G. LE BRAS et al., L'Age classique, 1140–1378. Sources et théorie du droit (Histoire du droit et des institutions de L'Église en Occident 7; Paris 1965).
[L. E. BOYLE]
5. The Corpus Iuris Canonici to the Council of Trent
The publication of the CLEMENTINAE and Extravagantes Ioannis XXII during John XXII's lifetime and of the Extravagantes Communes at the end of the 15th century opened up a new field of study to canonists, who had already written several works on the other collections of CORPUS IURIS CANONICI. Many of these new publications stem from the study of law pursued in the great university centers of Europe as well as at the University of the Pontifical Curia. Thus originated the commentaria, summae, quaestiones, repetitiones, consilia or responsa, etc. ThePage 51 | Top of Article didactic and practical nature of the works contributed to the lack of originality of the majority of canonists of this period.
Besides the usual commentaries or works of a practical nature, the literary output is marked by the publication of works that reflect the problems of the time. Treatises on schism appeared in order to prove the legitimacy of a specific pope or the supremacy of the sovereign pontiff or of the general councils, during the crucial phase of CONCILIARISM. The reports of civil and ecclesiastical authorities on the modality of the origin of the power of the emperor or of kings in relation to the pope were notable; so were those that dealt with the independence of kings from the emperor, with corollaries on the so-called ecclesiastical liberties. In addition to the treatises there appeared several works that were concerned with international law. They were occasioned by the wars of conquest against the Saracens in Africa and against the Turks, and the discovery of new, distant lands, such as India and America.
Councils of Constance and Pisa. Many canonists wrote on schism, taking a stand either for or against the pope. Besides his commentaries on the Decretales of Gregory IX and the Clementinae, Repetitiones, and Consilia, Cardinal Francis ZABARELLA, legate to the Council of Constance, wrote De schismate, which was published in several editions and later forbidden by the Council of Trent. Petrus de Ancherano, legate to the same Council and author of commentaries on the Decretales of Gregory IX, Liber Sextus, and Consilia, had participated in the Council of Pisa, where he wrote the Repetitio on the war on the infidels against HOSTIENSIS and composed the Allegationes iuris pro Concilio Pisano. Antonius de Butrio, author of commentaries on the Decretales of Gregory IX and Liber Sextus, and of Consilia, Repertoria iuris, De iure patronatus, De symonia, and De acquisitionibus, besides being engaged by pontifical commission in negotiations for the extirpation of schism, wrote a treatise on the subject in 1408.
Among the writers participating in the Council of Constance who wrote on schism and the general councils was Master André Dias with treatises on: De schismatibus, Gubernaculum conciliorum, and De civitate ecclesiastica, and the canonical-pastoral works Confessio generalis maior, Confessio generalis minor or Modus confitendi, De decimis, and Lumen confessorum. Jean Gerson and Pierre d'Ailly wrote theologico-juridical works and treatises on the supremacy of a council over the pope. Paulus Vladimirus, Rector of the University of Cracow, presented to the Council his Demonstratio Cruciferis de Prussia seu Ordini Teutonico opposita Infideles armis et bello non esse ad Christianam fidem convertendos. He also wrote Tractatus de potestate papae et imperatoris respectu infidelium. Defending the opposite side was the treatise De bello by the contemporary Iacobus episcopus Laudensis.
An important treatise on the schism is that of Ioannes de Lignano, commentator on the Decretum, Decretales of Gregory IX, and Clementinae, and author of De bello, De pace, Repetitiones, Concordantia decreti et decretalium, etc. Like Baldus de Ubaldi he wrote twice in defense of Urban VI. Against J. Lignano's treatise De fletu Ecclesiae, St. Vincent Ferrer wrote De moderno Ecclesiae schismate, in which he defended the antipope ClementVII. Baldus, having lectured on the three first books of the Decretales of Gregory IX, after his first Allegationes in favor of Urban VI, published under the title Quaestio Baldi de schismate, wrote Allegationes secundae pro Urbano VI. Ioannes de Imola, lawyer, canonist and author of commentaries on the Decretales of Gregory IX, Liber Sextus, and Clementinae, Consilia and Repetitiones, produced also a Tractatus super schismate. Bartholomew de Saliceto, civil lawyer, left a Consilium pro Urbano VI; and Nicholas de Fakenham, the Determinatio pro Urbano VI. Concerning Clement VII and Benedict XIII, Jean Le Fèvre wrote Tractatus de schismate, or De planctu bonorum; the works of Cardinal Petrus Flandrin and Peter Barriere were directed against Ioannes de Lignano; and Boniface Ferrer issued his Tractatus pro defensione Benedicti XIII. Cardinal Petrus Amelii wrote a treatise against the calling of a council to dissolve the schism; and Laurentius Ridolfi, a Florentine canonist, wrote a Consilium and Allegationes to justify the Council of Pisa. Robertus de Fronzola and Iacobus de Camplo, compiler of Decisiones novae of the Sacred Rota, also wrote the treatises De schismate concerning the Council of Pisa. Besides the tract on the legitimacy of his election, Benedict XIII wrote a reply to William d'Ortolan's treatise written to refute the first mentioned.
Council of Basel-Ferrara-Florence. Various canonists who took part in the Council of Basel-Ferrara-Florence produced works on Canon Law. John de Torquemada, commentator on the Decretum, was the first to appear in defense of the pope against the Council in his Summa de Ecclesia, Tractatus in favorem Eugenii IV contra decreta Concilii Constantiensis et contra gesta in Concilio Basiliensi, and Tractatus de potestate papae et Concilii generalis auctoritate. Nicholas de Tudeschis, the King of Aragon's ambassador at the Council of Basel, has a place among the best canonists of his time for his commentaries on the Decretum, Decretales of Gregory IX, Liber Sextus, Clementinae, and Flores utriusque iuris. Rodrigo Sanchez de Arevolo wrote Defensorium Ecclesiae et status ecclesiastici, De libera et irrefragabili auctoritate Romani Pontificis, De conciliis generalibus,Page 52 | Top of Article De origine ac differentia principatus imperialis et regalis, De pace et bello, etc. Of no small importance was St. John Capistran's Tractatus de papae et concilii sive Ecclesiae auctoritate, as well as his commentaries on the Decretales of Gregory IX and Extravagantes and his work of a pastoral nature, Speculum conscientiae. Petrus de Monte, defender of the pope against the Council of Basel, wrote De potestate papae et concilii. Joannes de Podio, author of Lectura super decretales, also wrote De potestate Summi Pontificis et concilii; and Marcus Mantuanus, Dialogus de concilio.
Church and State. Besides the common commentaries and works already mentioned, which refer to war, the spread of the gospel, and the power of the pope in relation to civil authority, one should remember the Consilia on the legitimacy of the Portuguese war against the Saracens, by Antonio de Pratovecchio and Antonio Rosellis. Rosellis, author of commentaries on the Decretales of Gregory IX, Repetitiones, and Tractatus legitimationum, issued also the Monarchia seu Tractatus de potestate Imperatoris et Papae. The same subjects are treated by Petrus Quesvel in Directorium iuris; Joannes Quaglia, in De Civitate Christi: Master Adam, in Defensorium Ecclesiae; Alvarus Pelagii, in Speculum Regum and De planctu Ecclesiae; Ludovicus de Cividale, in Dialogus de papali potestate; Aeneas Silvii Piccolomini, in Tractatus de ortu et auctoritate Imperii Romani; Franciscus Zoanettus, in De Romano Imperio ac eius iurisdictione; Guillelmus de Monserrat, in Tractatus de successione regum; Restaurus Cataldus Perusinus, in De imperatore; Michael Ulcurrunus, in Opus imperiale; and Alphonsus Alvares Guerreiro, in Thesaurus Christianae Religionis et Speculum Sacrorum Summorum Pontificum, Imperatoris ac regum. Antonius Corsetus Siculus was the author of Repetitiones and De potestate et excellentia regia. Aegidius Bellamera commented on the Decretum, Decretales of Gregory IX, and Clementinae and authored Consilia, which copies the statements made by Oldrado de Ponte on the total independence of kings from the emperor. These arguments are treated, though not always ex professo, by Petrinus Belli Albensis in De re militari; by Joannes Lupi Segobiensis, in De bello; by Paris a Puteo, in De re militari; or by Martinus Laudensis, in De bello.
General Commentaries. Other commentators on one collection or other of the Corpus Iuris Canonici not yet mentioned were Guido de Baysio, Henricus Bohic, Dominicus de Sancto Geminiano, Joannes Fantuzzi, Marianus Socinus, Benedictus Capra de Benedictis, Bonifatius de Vitalinis, Paulus de Aretio, Guilelmus Bonte, Philipus Franchus de Franchis, Ioannes de Prato, Alexander de Nevo, Angelus de Castro, Franciscus de Accoltis, Ioannes Antonius de Sancto Georgio, Laurentius de Pinu, Ioannes Franciscus de Pavinis, Stephanus Costa, Felinus Sandeus, Augustinus Beroius, Prosdocimus de Comitibus, Andreas Alciati, Iacobus de Zocchis de Ferraria, Andreas de Barbatia, Ioannes de Anaia, Laurentius Puldericus, Andreas Tartagnus, Decius, Iacobus Ioannes de Canis, Ioannes de Vico Mercato, Ioannes de Palaciis Rubeis, Iacobus Radwicz, Guido Papa, Ludovicus Gomesius, and Ioannes Koelnet de Vanckel. Several authors developed both Canon and civil law, and some indicated their points of contact and their differences; e.g., Bartolo di Sassoferrato, in his Tractatus inter ius canonicum et civile; Ioannes Baptista de S. Blasio, in his Contradictiones iuris civilis cum canonico; Galvanus de Bettino de Bononia, in Contrarietates et diversitates seu differentiae inter ius canonicum et romanum; Ioannes Milis, in Repertorium utriusque iuris: Ioannes Berberius, in Viatorium utriusque iuris; Felinus Sandeus; Franciscus de Accoltis; Antonius Corsetus; Iacobus Fontanus; and Petrus Maurocenus, author of Concordantiae iuris civilis et canonici.
The pastoral aspect of canonist publications is represented in Summae confessorum, or cases of conscience, such as Summa Astesana by Astesano, OFM, brought up to date in regard to sources of law by Gomes de Lisboa; the Summa Pisana, by Bartolomew a Sancto Concordio, OP, and added to by Nicolaus ab Auximo, OFM; the Summa, by Saint Antonine of Florence, OP; the Summa iuris, by Antonio de Bitonto; the Summa Angelica, by Angelus de Clavasio, OFM; the Summa Rosella, by Ioannes Baptista Trovamala, OFM; the Summa Tabiena, by Ioannes Cagnazzo de Tabia; the Summa Sylvestrina, by Sylvester Prierias, OP; and the Summa Armilia, by Bartholomeus a Fumo, OP. Finally, worth recalling in the beginning of the 16th century are the merit and influence of Ioannes de Chapuis and Vitalis de Thebis on future editions of the Corpus Iuris Canonici.
Bibliography: A. VAN HOVE, Commentarium Lovaniense in Codicem iuris canonici 1, v.1–5 (Mechlin 1928–); v.1, Prolegomena (2d ed. 1945) 1:466–81. R. H. TRAME, Rodrigo Sánchez de Ar-évalo, 1404–1470 (Washington 1958). A. D. DE SOUSA COSTA, Canonistarum doctrina de Judaeis et Saracenis tempore Concilii Constantiensis (Rome 1965). N. DEL RE, "Il 'Consilium pro Urbano VI' di Bartolomeo da Saliceto," Studi e Testi 219 (1962) 213–63.
[A. D. DE SOUSA COSTA]
6. The Council Of Trent To The Code Of Canon Law
The decrees of the Council of Trent had the controlling influence on the Canon Law of the Church until the promulgation of the Code of CANON LAW in 1917. New canonical institutes that developed in the period had their foundation in the reform in the Church that the Council inspired.
Council of Trent. The Council of Trent (19th ecumenical, 1545 to 1563) laid the dogmatic and canonical bases for the internal reform of the Church, anchoring the Church still more in the papacy. It gave the Church a new direction in its development, toward being no longer the Western Church but rather the Catholic Church. Tridentine Canon Law did not abolish the older Canon Law but rather restored, supplemented, and renewed it, and thereby created the basis for the modern development. Dogma and discipline were discussed together. The reform decrees were primarily canonical in content, dealing with the position and duties of clerics, regulations on ordinations, benefices and patronages, religious orders, criminal proceedings and penitential discipline, synods, and, in a particularly detailed fashion, marriage.
These regulations concentrated ecclesiastical faculties in the hands of the pope and in the hands of the bishop with regard to the diocesan clergy. But the implementation of the reform decrees encountered opposition in individual states, which led to legal confusion and legal disparities, especially for Catholics in Protestant territories where the council decrees were not recognized at all. Since many points of the agenda had not been completed at the Council, certain important matters were left to the personal regulation of the pope: Creed, Index, catechism, Missal, editions of the Bible, Breviary.
Since the interpretation, implementation, and dispensation of the council decrees had been entrusted to the pope, the Congregatio Cardinalium Concilii Tridentini Interpretum (now Congregation of the Council) was established in 1564.
In order to cope with all the assignments, the Roman CURIA was expanded and thoroughly reformed. The College of Cardinals (which since 1586 to 1587 included 70 members, of whom six were cardinal bishops, 50 were cardinal priests, and 14 were cardinal deacons) began the reform. Congregations of cardinals (initially 15 in number) were established to supplement the old curial offices, and each of these new congregations had its own area of competency; this entailed a fundamental and systematic reorganization of the curial administration. Thus there came into existence the Congregation of the Index (1571), the Congregation of the Inquisition (1542, 1564; later Holy Office), the Congregation of the Consistory (1587), the Congregation of Bishops and Regulars (1601), Propaganda (1622), etc. The work of codifying Canon Law was begun under Gregory XIII (1572–85). The text of the Corpus Iuris Canonici was reviewed by a commission of cardinals and periti (Correctores Romani), and an official Roman edition was published (1580–1582). Clement VIII (1592–1605) had all the scattered decretals of the remaining common Canon Law collected into a Liber Septimus of the Corpus; but this book was not approved, because some states did not recognize all the regulations of Canon Law. Only the most important canonist among the popes, Benedict XIV (1740–1758), had his decrees collected and published (1746, 1751) as authentic sources of Canon Law.
Missions. The discovery of new continents with heathen inhabitants and the defection of entire peoples of the Old World from the Catholic Church made necessary an organizational separation of the areas that had remained Catholic from the countries that were only gradually to be encompassed by the missions to the heathens and Protestants (terrae missionis). Of radical importance for the organization of the missions was the institution of the Congregation for the Propagation of the Faith (1622) as a central Roman office. The area of the missions (organizational forms were mission stations, mission parishes, apostolic prefectures, apostolic vicariates, missionary dioceses) was placed under the Congregation, whose prefect (the "red pope") acquired extensive plenary powers.
Diocesan Constitution. Trent strengthened the position of bishops by giving them papal plenary powers as ordinary jurisdictional powers in their capacity as delegati sedis apostolicae. The Pontificale Romanum prescribed for bishops an oath of obedience to the pope. The jurisdictional power of the ordinary over cathedral and collegiate chapters and monasteries was restored. The orderly episcopal constitution that had been breached before the Council by exemptions was again implemented.
The Council deprived the office of archdeacon of all ordinary jurisdiction; all disputes were to be referred to the episcopal court. The archdeacon was replaced in judicial matters by the OFFICIALIS and in matters of administration rights were strengthened. The auxiliary bishop came to the fore as the assistant to the bishop, especially when the bishop was encumbered with political duties.
The Council of Trent ordered that provincial synods be held every three years and diocesan synods annually, but the command was never implemented. The parish clergy was bound to the bishop because the approbatio pro cura was granted for only a limited time. The ordinary was given supervision of the clergy and their theological training to ensure that ecclesiastical offices were filled worthily. There was an intensification of the parochial pastorate, a strict enforcement of celibacy and residence requirement, a limitation of plurality of benefices (only one benefice could be awarded to each cleric), and a reorganization of the law on patronage and incorporation.
Religious Institutes. Religious life acquired new importance because of the new orders and congregationsPage 54 | Top of Article that were founded. These were the Theatines (1524), the Capuchins (1528), and the Jesuits (1534) with their monarchically centralist constitution and sterner obligation to obedience. There was a general reform of the old orders and the foundation of numerous congregations, adapted by specialized assignments to the individualism of the modern age. They constituted a mobile element in ecclesiastical assignments in virtue of the disappearance of the cloister, the concept of stability, and the profession of solemn vows. The papal rights of supervision over exempt monasteries were delegated by Trent to the bishops.
Marriage Law. The Council of Trent's decree TAMETSI established exact norms for the form of marriage, namely, the solemnization of the marriage before the pastor and two witnesses. It corrected the abuses that had arisen through clandestine marriages and prescribed the entry of the marriage in ecclesiastical marriage registries. These regulations were not uniformly implemented; they came into force only in the parishes in which they were officially proclaimed, and they were not proclaimed uniformly everywhere.
The papal decree NE TEMERE (1907–1908) declared that the decree Tametsi was universally binding and made the participation of the pastor active rather than passive; i.e., he was to obtain the consent of the bridal couple. A new impediment to marriage, that of MIXED MARRIAGES, arose as a result of the Protestant Reformation.
Procedure and Penal Law. In procedural Canon Law, the iudices in partibus appeared as the court of third appellate instance, instead of a papal court; and the competency of circuit courts was renewed. The old procedure for accusations gradually gave way to the inquisitorial procedure. In official procedure there developed the office of the public prosecutor (promotor fiscalis), modeled on French trial law (procureur du roi).
In penal law the Cenacle bull collated the censures reserved to the pope, and these were raised in 1568 to the status of penal law with legal force in perpetuity. The Protestants were still considered members of the Catholic Church, but they were held to be heretical and therefore excommunicate. The necessity of daily coexistence led to the ban from all communication with only those excommunicated by name (excommunicati vitandi).
Currents dangerous to the papal system arose within the Church in the 17th century in France in GALLICANISM and JANSENISM. Gallicanism was a form of national State-Church sovereignty supporting CONCILIARISM, and had a basis in the canonicodogmatic and religiotheological area. A general assembly of Catholic clergy (1682) set the four slogans of Gallicanism: (1) princes are unlimited in matters of secular government; (2) the pope is limited in matters of spiritual government by the general council (in accord with decrees of the Council of Constance); (3) the pope is specially limited by the Gallican privileges; (4) in matters of faith, the pope is limited by the episcopate as a whole. These articles were condemned by Pope Alexander VIII in 1690, but it had descendants in the FEBRONIANISM founded by Nicholas of Hontheim in 1763 and JOSEPHINISM in Austria and Belgium. These theories formed, together with the theory of natural law of the Enlightenment, the bases for the system of State-Church sovereignty. According to this system, the State claims the right to make the Church subject to the power of the State (iura circa sacra): ius advocatiae, ius inspectionis, ius cavendi, ius placeti, ius exclusivae, ius appellationis ab abusu, ius dominii supremi, ius reformandi. The radical tendencie of the Enlightenment led during the French Revolution to the legal abolition of Christianity.
Neither the French Revolution nor the Napoleonic era led to the collapse of the Church; rather they contributed to its spiritual renewal. The papacy centralized in itself, in ever-increasing measure, all ecclesiastical power. The episcopalistic currents of the ancien régime receded in favor of the common law. With many European states concordats were concluded that mitigated State-Church sovereignty. Conferences were held by the bishops in individual states to discuss improvement of the state of the Church and the means to a universal implementation of the Canon Law. The Church's desire to strengthen its rights so as to attain independence for the fulfillment of its divine commission led to the convocation of Vatican I (20th ecumenical council, 1869 to 1870). The definition of the universal papal primacy and papal infallibility in matters of faith anchored the Canon Law on the infallible supreme episcopacy of the pope; political conditions prevented the Council from concluding its deliberations on the place of the bishop in the Church. Thus the question of the reform of Canon Law remained unresolved.
It was not until the reign of Pius X (1903–1914) that this thought was revived. In 1904 a commission of cardinals was established to elaborate a draft of a code of Canon Law. Meanwhile, difficult and urgent areas had been regulated experimentally: rights of religious orders and pastors, appointment of bishops, solemnization of marriages, penal and procedural law, election of the pope, and reorganization of the Roman Curia.
Bibliography: R. NAZ, Dictionnaire de droit canonique, ed. R. NAZ, 7 v. (Paris 1935–65) 4:1446–1520. A. M. STICKLER, Lexikon für Theologie und Kirche, ed. J. HOFER and K. RAHNER, 10 v. (2d, new ed. Freiburg 1957–65) 5:1296–1300. H. E. FEINE, Kirchliche Rechtsgeschichte, v.1 Die katholische Kirche (4th ed. Cologne 1964). A. M. KOENIGER, Grundriss einer Geschichte des Katholischen Kirchenrechts (Cologne 1919). W. PLÖCHL, Geschichte des Kir-chenrechts,Page 55 | Top of Article 3 v. (Vienna 1953–59; 2d ed. 1960–) v.3. P. HINSCHIUS, Das Kirchenrecht der Katholiken und Protestanten in Deutschland, 6 v. (Berlin 1869–97; repr. Graz 1959). R. VON SCHERER, Handbuch des Kirchenrechts, 2 v. (Graz 1886–98). U. STUTZ, "Kirchenrecht" in Encyklopädie der Rechtswissenschaften, ed. F. VON HOLTZENDORFF and J. KOHLER, 5 v. (2d ed. Berlin 1913–15) 5:279–390. J. F. VON SCHULTE, Die Geschichte der Quellen und der Literatur des kanonischen Rechts, 3 v. in 4 pts. (Stuttgart 1875–80; repr. Graz 1956), v.3. A. M. STICKLER, Historia iuris canonici latini: v.1, Historia fontium (Turin 1950). A. VAN HOVE, Commentarium Lovaniense in Codicem iuris canonici 1, v.1–5 (Mechlin 1928–); v.1, Prolegomena (2d. ed. 1945).
7. The 1917 Code Of Canon Law
On March 19, 1904, Pope Pius X in the motu proprio Arduum sane munus [Acta Apostolicae Sedis 36 (1904),549] announced his determination to refine the laws of the Church into a single volume. At that time ecclesiastical law had to be ferreted out of a bewildering number of sources. In addition to the Corpus iuris canonici and the decrees of Trent were the constitutions of later Roman pontiffs (collected in the Bullaria) as well as the instructions, decrees, and decisions of the Roman congregations. In those sources the material was arranged chronologically rather than systematically. The texts were verbose including, as they did, narration and exposition. Later provisions had superseded numerous rulings. The commission of cardinals established by the pope to carry out this project, under the direction of Cardinal Gasparri, used as a model the 19th-century civil codes of Europe. There the law was stated in abstract formulations totally cut off from the particular cases and concrete situations in which the principles had been worked out.
Beginning in March 1912, when a draft of the Code had been completed, there began a consultation with the bishops of the Latin Church and superiors of religious orders. Their suggested modifications were studied and the text amended. Meanwhile, World War I erupted and Pius X died (1914), to be succeeded by Benedict XV. Finally, on May 27, 1917, Pentecost Sunday, the pope promulgated the Codex Iuris Canonici Pii X Pontificiis Maximi iussu digestus Benedicti Papae XV auctoritate promulgatus (Vatican City 1917). The Code, he noted, had been requested by many bishops at the First Vatican Council and was 12 years in the making. It was to take effect the following Pentecost (May 19, 1918).
The 2,414 canons of the 1917 Pio-Benedictine Code are arranged in five books subdivided into parts, titles and chapters. Book I (cc. 1–86) establishes general norms. Book II "On Persons" (cc. 87–725) treats clerics, religious, and lay persons. Book III "On Things" deals with Sacraments (cc. 731–1153); sacred times and places (cc. 1154–1254); divine worship (cc. 1255–1321); the ecclesiastical magisterium (cc. 1322–1408); benefices (cc. 1409–1494); and ecclesiastical goods (1495–1551). Book IV "On Processes" concerns the judicial system (cc. 1552–1998) and the beatification and canonization of saints (cc. 1999–2141). Book V "On Crimes and Penalties" (cc. 2195–2414) lays down the penal law of the Church. The footnotes, organized by Cardinal Gasparri to indicate the sources from which the canons were drawn, do not have the same authority as the canons themselves. Cardinals Gasparri and Seredi (1923 to 1939) reproduced all the documents referred to in the notes (except the Corpus iuris canonici, the Council of Trent, and liturgical books) in nine volumes of fontes.
Post-Code Developments. Just as there was provision for an authorized interpretation of the decrees of the Council of Trent, so on Sept. 15, 1917 the Holy Father, implementing canon 17 of the Code, instituted the Commission for the Authentic Interpretation of the Code of Canon Law. The decisions of this commission, as indeed all laws promulgated by the Holy See, were to be published in the official journal, the Acta Apostolicae Sedis (canon 9). The commission in 1935 and 1950 made available collections of its responsa.
In the course of the next 40 years, the code itself was modified slightly in only four or five instances by dropping a phrase or substituting a term, but legislative activity by no means came to a halt. The 20th-century popes accommodated discipline to the needs of the time. The Canon Law Digest was founded to provide English translations of various documents affecting the code such as: "replies of the Code Commission; declarations of the Supreme Pontiffs in Encyclicals, Letters, or Apostolic Constitutions; Replies, Decrees, and Instructions of the Sacred Constitutions; and even decisions of the Sacred Tribunals in particular cases." Five volumes of approximately 600 pages each were required for the years 1917 to 1962. The canon law was modified in such areas as papal elections, marriage, confirmation, religious life (secular institutes), military chaplaincies, procedures, and the Communion fast.
Bibliography: Codex iuris canonici Pii X Pont. Max. iussu digestus Benedicti Papae XV auctoritate promulgatus, praefatione, fontium annotatione et indice analytico-alphabetico ab Emo. Petro Card. Gasparri auctus (Vatican City 1917). T. BOUSCAREN, J. O'CONNOR, and E. PFNAUSCH, eds. Canon Law Digest, 11 v. (Milwaukee, Mundelein, Illinois, Washington 1934–1991). M. CONTE A CORONATO, Institutiones iuris canonici, 5 v. (Turin 1950–61). E. EICHMANN, Lehrbuch des Kirchenrechts, ed. K. MÖRSDORF, 3 v (9th ed. Paderborn 1959–60). J. ABBO and J. HANNAN, The Sacred Canons: A Concise Presentation of the Current Disciplinary Norms of the Church, 2 v. (St. Louis 1952). T. BOUSCAREN and A. ELLIS, Canon Law: A Text and Commentary, 4th rev. ed. (MilwaukeePage 56 | Top of Article 1963). S. KUTTNER, "The Code of Canon Law in Historical Perspective," The Jurist 28 (1968) 129–48.
[J. E. LYNCH]
8. The 1983 Code of Canon Law to the Present
The Second Vatican Council. On Jan. 25, 1959, a few months after his election, Pope John XXIII surprised the Catholic world by announcing his intention to convoke an ecumenical council, which would lead "to the desired and long awaited modernization (aggiornamento) of the Code of Canon law." [Acta Apostolicae Sedis 51(1959) 68]. The pope waited until the completion of the first session of the council before appointing on March 28, 1963, the members of the Pontifical Commission for the Revision of the Code of Canon Law. Since the commission decided to postpone any activity until the council adjourned, it did not formally undertake its task until Nov. 20, 1965. At that session the then reigning pope, Paul VI, insisted that canon law must be reformed in accord with a "new way of thinking proper to the Second Ecumenical Council of the Vatican." The commission identified ten discrete areas of the law and established study groups of experts or consultors to assist in the actual formulation of the new code. Conferences of bishops throughout the world were invited to nominate additional consultors, as well as to make proposals for the renewal of the law.
Paul VI, however, did not delay the implementation of conciliar resolutions. Even while the council was still in session, he decreed a number of changes in the law. His first notable enactment, Pastorale munus of Nov. 30, 1963, for example, granted to bishops extensive faculties which had hitherto been reserved to the Holy See. From the close of the council to the end of his pontificate (1966 to 1978) Pope Paul VI promulgated at least 219 documents which effected change in the Church He revised extensively its liturgical and sacramental life and established many structures called for by the council, such as the synod of bishops and episcopal conferences. He sought to infuse the law with the new spirit of collegiality. When the new code finally did appear, therefore, its canons did not seem all that new to most Catholics because they embodied and systematized the reforms Pope Paul VI had already introduced.
Revision Process of the 1983 Code. In April 1967 Cardinal Pericle Felici, the president of the Commission for the Revision of the Code, assembled a central committee of consultors to elaborate principles to guide in the work. Among the ten principles drawn up and later approved by the First Synod of Bishops in the fall of 1967, the most notable were that the code should be animated by a spirit of pastoral care, that ecclesiastical penalties be kept to a minimum, that the office of bishop be enhanced, and that SUBSIDIARITY at all levels be respected.
From 1972 to 1977 as the ten study groups gradually completed their first drafts or schemata of the proposed new law, they sent them for evaluation to the conferences of bishops throughout the world, to the unions of superiors general of religious and secular institutes, to the various departments of the Roman Curia, and to pontifical universities and faculties. By the end of 1978 these bodies had returned their written comments to the commission. In light of the observations received, a second draft with the canons arranged sequentially in a single volume was prepared and presented to the cardinals of the commission on June 29, 1980. The pope increased the number of cardinal members and asked that each submit a written report in preparation for a plenary session of the commission. Then, in response to a request for a second worldwide consultation, the pope added 15 representatives of episcopal conferences bringing the commission membership to 74. Its staff in a document entitled the Relatio dated July 16, 1981, summarized the written observations of the expanded commission. The plenary session, based on the 1980 draft of the code and the proposals in the Relatio, was held in Rome Oct. 20 to 28, 1981. At the conclusion of the session the commission voted unanimously to submit the amended canons to the pope for promulgation. For a year the pope with a small group of canonists reviewed the commission's final draft and made a number of changes of his own.
Promulgation of the 1983 Code. On Jan. 25, 1983, exactly 24 years after Pope John XXIII had called for an aggiornamento, Pope John Paul II promulgated the new Code of Canon Law for the Latin Church to take effect Nov. 27, 1983, the First Sunday of Advent: Codex iuris canonici auctoritate Ioannis Pauli PP.II promulgatus [Acta Apostolicae Sedis 75.2 1983] xxx + 317. Although only the Latin text is official, translations into the vernacular languages, are permitted, unlike with the 1917 Code, provided they are approved by the episcopal conferences. The Code of Canon Law in English Translation prepared by The Canon Law Society of Great Britain and Ireland in association with The Canon Law Society of Australia and New Zealand and The Canadian Canon Law Society was published in 1983. The Canon Law Society of the United States also prepared a translation, which was approved by the National Council of Catholic Bishops. It appeared in 1983 with facing pages of Latin and English texts. A new translation was published by the Canon Law Society of America in 1999 to take account of corrections made in the Latin text as well as to present a more accurate English version. All of the above publications have translations of the pope's Apostolic Constitution DisciplinaePage 57 | Top of Article plinae Leges promulgating the text and the American version also includes the Preface in both Latin and English.
Comparison of the Two Codes. The 1983 Code is about three-quarters the size of the 1917 Code, 1,752 canons to 2,414. The reduction was accomplished mainly by eliminating certain sections and by combining several canons into one canon with several paragraphs. The section on the beatification and canonization of saints, about 150 canons, was completely omitted and the treatment of the Roman curia was reduced from 24 canons to two. (New sets of norms pertaining to the canonization process and to the curia, promulgated respectively in 1983 and 1988, are now published as appendices to the 1983 Code). The 85 canons dealing with benefices have been eliminated. Other sections have been considerably reduced: ecclesiastical crimes and punishments, from 220 canons to 88; sacramental law, from 425 to 325, sacred times and places, from 100 to 48, and judicial processes from, 450 to 320.
Far more significant than the relative size of the two codes are the different ecclesiologies undergirding them. The 1917 Code reflected a Church viewed in political categories, that is, as a perfect society, which was monarchical in structure. The Second VATICAN COUNCIL envisioned the Church as a theological mystery existing in hierarchical communion. Pope John Paul II in Sacrae disciplinae leges, the decree of promulgation, observed, "in a certain sense this new Code could be understood as a great effort to translate this same conciliar doctrine and ecclesiology [of Vatican II] into canonical language."
Even the ordering of the 1983 Code resonates to the new spirit. Whereas the books of the earlier code were organized according to the civil law of the Emperor Justinian (persons, things, and actions), the outline of the new code is based on the mission of the Church, with its threefold munera or offices of teaching, sanctifying, and pastoring. In the 1917 Code, furthermore, all authority above the level of the diocese was labeled delegated papal power, while in the new Code all jurisdiction is episcopal the purpose of papal jurisdiction being the inner unity of the college of bishops.
Significant Innovations. Among the notable features of the new code is the attention given to the laity. Canon 208 insists on the equality of all those who belong to the Church. For the first time in church law "the obligations and rights of all the Christian faithful" are spelled out (cc. 208–223). All have the right, for example, to free association for charitable or pious purposes or to further the Christian calling in the world (c. 215) and to vindicate their rights before an ecclesiastical court (c. 221). The lay faithful have the right and obligation, among others, to participate in the apostolate (c. 225), to assume ecclesiastical offices for which they are qualified (c. 228), and the right to a decent remuneration for their services (c. 231). More specifically, they can be in charge of parishes (c.517.2), preach in churches (c. 766), assist at marriages if no priests or deacons are available (c. 11112.1), and serve on the diocesan finance council or even as finance officer of the diocese.
Another new feature of the code, recognition of the principle of subsidiarity, is the delegation of legislative authority to provide for local circumstances. In the 1983 Code 84 canons require or permit episcopal conferences to legislate. The conference in each region, for instance, is to set the amounts at which special permission is needed to alienate church property (c. 1292), to determine more precisely the observance of fast and abstinence (c.1253), and to enact norms for the catechumenate (c.788.3). Besides episcopal conferences, the Code in a number of places also leaves it to the judgment of the local diocesan bishop to issue norms, such as for parish finance boards (c. 537), for preaching in the diocese (c.772.1), for catechetics in the diocese (c. 775.1) and for sacramental sharing (i.e., allowing non-Catholics to receive certain sacraments, c. 844.5).
Canon law, to be sure, is much more extensive than the legislation contained in the 1983 Code. Liturgical law and concordat legislation ("agreements entered into by the Apostolic See with nations or other political societies"), though not part of the code, have legal force (cc. 2 and 3).There is, furthermore, the CODE OF CANONS OF THE EASTERN CHURCHES promulgated by Pope John Paul II Oct. 18, 1990. Additional papal legislation, to be treated below, has also appeared since the 1983 Code. As was just noted, episcopal conferences may implement or give specificity to provisions of the 1983 Code as well as enact norms of their own. Each diocese or religious institute may have particular law for its subjects.
Interpretation of Canon Law. As with the 1917 Code, provision was made for the authentic interpretation of the new law. On Jan. 2, 1984, Pope John Paul II established the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law with competence over all the universal laws of the Latin Church. With the new law on the Roman curia, Pastor bonus of June 25, 1988, its name was changed to the Pontifical Council for the Interpretation of Legislative Texts. The council is now charged to interpret all laws of the Church, both Eastern and Latin. The general decrees of the conferences of bishops are to be submitted to the council and examined from a juridical perspective. At the request of those concerned, the council determines whether particular laws and general decrees of legislators (below the pope)Page 58 | Top of Article are in conformity or not with universal church law. In the 1995 issue of its journal, Communicationes (27:195–209), the council (or commission) listed the 26 authentic interpretations it had issued to date. Such interpretations have since become rather infrequent, only one in 1998 and another in 1999.
Post-Code Developments. Besides the apostolic constitutions Divinus perfectionis magister on the causes of saints (1983) and Pastor bonus on the reorganization of the Roman curia (1988), now printed as appendices to the code, other significant documents have affected canon law. The apostolic constitution EX CORDE ECCLESIAE on Catholic universities and other postsecondary institutions of Aug. 15, 1990, complemented canons 807–814 of the Code. The apostolic constitution Universi dominici gregis of Feb. 22, 1996, established new norms for the election of a pope. The Pontifical Council for Promoting Christian Unity issued a Directory for the Application of Principles and Norms on Ecumenism on March 25, 1993, which was promulgated by authority of the pope. On Aug. 15, 1997, six congregations and two pontifical councils issued an "Instruction on Certain Questions Regarding the Collaboration of the Non-Ordained Faithful in the Sacred Ministry of Priests," approved by the pope in forma specifica. Pope John Paul II in an apostolic letter AD TUENDAM FIDEM issued motu proprio May 18, 1998, modified the code by adding a second paragraph to canon 750. Accordingly, Catholics are obliged to assent to "each and every thing which is proposed definitively by the magisterium of the Church concerning the doctrine of faith and morals." Canon 1371, which lists those who are to be "punished with a just penalty," is also adjusted to include one who" pertinaciously" rejects the doctrine mentioned in the expanded canon 750. On May 21, 1998, Pope John Paul II issued an apostolic letter motu proprio Apostolos suos entitled "The Theological and Juridical Nature of Episcopal Conferences." At the end of the document were four complementary norms, more restrictive than the codal text on the legislative competence of these bodies.
Bibliography: Codex iuris canonici auctoritate Ioannis Pauli PP. II promulgatus, fontium annotatione et indice analyticoalphabetico auctus (Vatican City 1989). X. OCHOA, Index verborum ac locutionum Codicis iuris canonici, 2nd ed. (Vatican City 1984). J. BEAL, J. CORIDEN, and T. GREEN, New Commentary on the Code of Canon Law (New York 2000). A. MARZOA et al., eds., Comentario exégetico al Código de derecho canénico, 6 v. (Pamplona 1996). J. FOX, "A General Synthesis of the Work of the Pontifical Commission for the Revision of the Code of Canon Law," The Jurist 48 (1988) 800–40. For annual review, Ephemerides theologicae Lovanienses (Bruges 1924– ).
[J. E. LYNCH]
Gale Document Number: GALE|CX3407701987