Imperial Legislation.

The principle stated earlier about the transitory and relative significance of law in Church polity can serve now as a key for the understanding of the easy and practically unchallenged acceptance in the East of imperial legislation in the field of Church administration once the emperor himself became a member of the Church and had agreed to protect the basic sacramental and doctrinal principles upon which the Church is built. No text ever gave the emperor the power to define or formulate these principles, but it was universally accepted that he had a responsibility for relating them to the empirical realities of history and thus to manage where necessary the practical affairs of the visible Church. This is the meaning of the famous words attributed to Constantine — “I have been established by God as the supervisor of the external affairs of the Church” * — and consistently applied in the legislation of Justinian. The Codex and the Novellae contain a set of laws concerning the Church, which covers a much wider range of ecclesiastical functions and activities than does the entire conciliar legislation before and after Justinian. A fine example of Justinian’s style is his edict of 528 concerning the mode of selecting candidates for the episcopacy:

Taking ever every forethought for the most holy churches and for both honour and glory of the Holy Immaculate and Consubstantial Trinity through which we have believed that both we ourselves and the common polity have been saved, also following the holy apostles’ teaching... and by the present law, we ordain that as often as in any city whatever it should happen that the Episcopal see is vacant and a vote by the persons inhabiting the said city should be taken concerning three persons who have borne a character for correct faith and holiness of life and the other virtues, so that, the most suitable from these, should be selected for the episcopates…²

The famous Novella 6 contains, on the other hand, a full set of bylaws for the Church’s existence in the framework of the Roman imperial system.

It was self-evident that, in principle, there could be no contradiction between ecclesiastical canons and imperial laws. Justinian himself ordered that canons had “force of law”³ (legum vicem, Nov. 131, 1), but later Byzantine commentators admitted the possibility of a contradiction between canons and imperial laws. In that case, the canons were to be preferred.⁴ Actually, it is always important to remember that, in spite of all the power, which was accorded them in ecclesiastical affairs, the emperors were above neither the dogmas nor the canons of the Church. The explicit denial of doctrinal authority to the emperors by anti-iconoclastic writers like John of Damascus and Theodore the Studite and the opposition of Patriarch Nicholas I Mystikos (901-907, 912-925) to the uncanonical fourth marriage of Emperor Leo VI (886-912) are among the many examples available. The above reservations in no way exclude the fact that it is impossible to understand Byzantine ecclesiastical polity and consciousness without taking imperial legislation into consideration. After the Code of Justinian, the greatest body of important texts was found among the Leges Novellae, which were promulgated by Justinian and by his successors, especially Leo VI (886-912) as complements to the Code.

Other important collections of laws relevant for the Church are the Ecloga of the Isaurians issued between 739 and 741, which includes modifications of Justinian’s legislation, especially in marriage and divorce laws. Basil I (867-886) published major legislative texts, partly codifying and partly modifying, earlier legislation, the Procheiron, which appeared between 870 and 878, was a handbook for lawyers and which like the Ecloga contained laws on marriage and on ecclesiastical affairs: a Title VII — on forbidden marriages, a Title XI — on divorce, a Title XXVIII — on qualifications and procedure for clergy appointments. The so-called Basilics, which appeared partly under Basil I and partly under his successor Leo VI, reproduced some of Justinian’s laws but omitted others thus making a selection important for Medieval Byzantine and Slavic ecclesiastical practices. The exact character of another text, which also appeared under the Macedonians and was probably drafted by Patriarch Photius, was not so clear: the Epanagoge (“Recapitulation of the Law”) was well known for its description of the emperor and the patriarch of Constantinople as “the most exalted and the most necessary members of society;” it also contains legislation on matters of clerical discipline (Titles VIII and IX), on the legal status of Church property (Title X), and on marital law (Titles XVII and XXI). It was not quite clear if the Epanagoge acquired force of law and was ever formally promulgated, but it was often quoted and reproduced in later legal collections. Its scheme of a God-established dyarchy of the emperor and of the patriarch — in line with Justinian’s theory of “symphony” between Church and state, but exalting in particular the unique position of the “ecumenical patriarch” of Constantinople as a high official of the empire — is close to the ideology which prevailed in Byzantium in the ninth century after the victory over imperial iconoclasm. Later, this scheme became a standard program in Slavic countries, where national “patriarchs” shared the dyarchy with various local rulers.

Date: 2016-01-14; view: 473