This uncertainty in the canonical consciousness is one reason for the many difficulties in current Church life. In time, of course, these difficulties will be overcome especially if the conditions of our life change as a result not only of purely Church matters but by other things, having no relation to the Church. On the other hand it seems to me that in whatever way we can assist towards a beneficial process of time, we can prepare for the overcoming of these difficulties by establishing a correct basis of canonical consciousness and a correct relationship to canons based on that consciousness.
In order to solve canonical problems a knowledge of canonical material is insufficient in itself, nor is the ability for applying this knowledge by referring to this or that canon in specific cases. One must know the meaning of "canonical" and "uncanonical," i.e. there must be a broader and a higher criterion which would be superior to individual canonical problems and by which the canons themselves and the external forms of Church life could be judged. This criterion can be manifest only under correct canonical consciousness, i.e. one which comes out not from temporary, changeable things, but out of things which are changeless, permanent, supratemporal, and eternal. In this way the question of correct canonical consciousness comes to the foundation upon which this consciousness must rest.
Is it possible to seek a foundation for the correct canonical consciousness exclusively from the forms of Church life developed through history, as the usual canonical consciousness is inclined to do? In other words, can the forms of Church life which evolved be considered unchangeable? This question can be rephrased in another way: are the historically evolved forms of Church life the only possible ones? Is it not possible, in an extreme case, to imagine other forms of Church life, as a result of other historical circumstances that the ones presently existing? If we turn to history then it seems that the answer can be in the affirmative. In reality, historical possibilities were diverse; the historical development could have gone in different directions and Church life did not always reflect that which was the basis of the first Christian communities, but was subject to substantial changes from those beginnings and an introduction of new ones. To see this, it is enough to compare the charismatic structure of Christian communities in the First century not only with our Church life, but with the structure of the Church in the Fourth and Fifth centuries, or the Church structure in the Second century with its small communities independent of each other, with the Church order during the formation of Patriarchal territories or, finally, the form of the Alexandrian Church of the Third century with the form found in its nearest neighbors: Antioch, Jerusalem and Ephesus. Even during the times when the basic foundations of Church organization saw their final development, one can find a number of examples of radical changes: the composition of councils in pre-Constantinian times and in later periods; the delineation of the bishop's authority, the significance of the lay element, etc. It would not be correct to say that the Roman community of the First century contained within itself all the attributes of future "Catholicism." As a result of a number of other historical conditions, the history of the Western Church could have had a different development: it could have been less divergent from the Eastern Church in its structure, just as the Eastern Church could have acquired more characteristics of "Catholicism." However, Church structure is influenced not only by different forms of historical conditions -- ecclesial, political, social, cultural, but even something more, which does not depend on these temporary, changeable influences. Canonical structure is only the external expression of the dogmatic teaching about the Church. This teaching is that changeless, timeless nucleus which lies, or must lie, as the foundation of all Church structure. Out of the same kernel, depending on different conditions, on differences in culture, grows the plant with different external variations. But no matter how far these variations go, a particular seed can only result in a particular growth. The canonical structure of the Church can be different, and this difference is legitimate and even necessary, as long as it does not impinge upon the changeless substance of the Church. In different historical epochs the substance of the Church could have various expressions inasmuch as it demands and looks for a more complete realization under given historical circumstances. This is an essential condition for every correct form of Church life -- to realize more fully the substance of the Church itself within historical circumstances -- but at the same time this is the boundary beyond which these changes can not go. Thus it can be admitted that the historical process of Church life could have gone a different way and that Church structure could have adapted in different ways from what presently exists, but under the conditions that these variations do not touch upon and distort the substance of the Church. Protestantism was correct in its wishes to change the structure of the Catholic Church of the Middle Ages, as something that did not meet the needs of conditions of the new era (the Catholic Church very quickly and substantially changed and thus recognized the correctness of those needs) and which in some ways distorted the nature of the Church; but the Protestants themselves fell into a total tyranny since they fell away from the dogmatical teaching about the Church. Their Church structure did not have its nucleus, it did not have its carrier, since it found itself outside the Church, thus the changes which were allowed overstepped those bounds beyond which they became distortions. Every form of Church life is legitimate and acceptable as long as it is based on correct dogmatical teaching. Thus the Catholic structure would not call for substantial changes from our part only if the differences in the dogmatical teaching about the Church could be straightened out. On the other hand it is quite understandable that the Catholic Church would be willing to accept totally the structure of the Eastern Church only if Orthodoxy would accept the teaching on Papal authority, i.e. the Catholic teaching about the Church.
The dogmatic teaching about the Church, as all dogmas, is not only a theoretical truth: it must find its reflection and realization in life. This realization of dogmatical teaching about the Church is the canonical structure, but this realization of course, can never be complete. No form of Church life adequately expresses the fullness of the dogmatical teaching, and is only a relative approach to it under a given historical situation. Thus there can be no talk about any absolutization of whatever form of Church life, since such an absolutization would express the introduction of relative empirical forms to the level of absolute truth. However, on the other hand, historical forms are not completely incidental: they are always a valid attempt to express more completely the nature of the Church, or in any case, some of its aspects. Various historical forms, internally, in their depth, are linked with each other in the foundations of its dogmatic teaching. That is why any change must be in response not only to the changing historical conditions and the need to adapt to them, but at the same time, to the striving for a more complete, more adequate expression of the nature of the Church under the new historical circumstances. All this means that any such change becomes legitimate and justified when the new form of Church life will give a more fuller expression of the eternal dogmatic truth about the Church than did the older form. We are free to change and to create historical forms of Church life but we are not always correct in doing so. In this problem, as well as in Orthodoxy in general, we have a combination of conservatism and loyalty to tradition with the greatest freedom and boldness.
Canonical consciousness cannot have its basic strong point in historically evolved forms because of their relativeness and impermanence. If it attempts to be dependent on them then this will result in an incorrect relationship to historical forms and to a distortion of the canonical consciousness itself. It is unavoidable that one of such temporary forms of Church life is elevated to a permanent and unchangeable status. This will bring about a weakness and even a loss of the critical relationship to contemporary forms of life. A proper feeling for history disappears or must disappear, and with it, any creative energy. The eternal dynamic Church life is replaced by one that is static: an absolute subordination to the relative. The general rule becomes effective under which every attempt of absolute assertion of empirical relativism results in that what is absolute, and truly unchangeable becomes relative. Canonical consciousness becomes a brake which attempts to hold Church life in one place, it stifles any new currents of life, not only the undesirable but even the healthy. Of course it is possible to interfere and to oppose the historical process, but history cannot be delayed or stopped. A different historical epoch must naturally accept its form of Church life as the basis for canonical consciousness. Consequently, there cannot be a single canonical consciousness and every period has its own canonical consciousness, and thus there is no single criterion but there are any number of them. The absence of a single canonical consciousness tears the history of the Church apart and violates the unity of the Church itself.
If one cannot find the sources for correct canonical consciousness in historical manifestations of Church life then perhaps it is possible to find them in the canons themselves, in the ecclesiastical legislation, i.e. to consider canonical that which corresponds to canons. I will not touch upon the very complex problem of the interrelation of juridical consciousness and juridical norms but only wish to point out one circumstance: in order that canonical consciousness can really have a basis in canonical norms, it is essential that these norms encompass and delineate all canonical life in the Church and all its order such as, for example, Hebrew legislation which encompassed and regulated the total life of the Hebrew people. Hebrew Old Testament juridical consciousness is the classic and perhaps the only example of juridical consciousness completely conditioned by existing norms. This was possible only because the Old Testament norms, at least in the consciousness of the Hebrew people, were given once and for all and had their source in the will of God. Incidentally, if we turn to canonical legislation we will find extremely curious features. The Orthodox Church never had and to this day does not have a common codex of Church law which could compare to the codex of canon law of the Catholic Church. In this I do not in any way suggest that the Orthodox Church must correct that deficiency. Each local Church has its own compendium which reflects the local characteristics. The source of all such compendia lie those collections of Church law compiled in Medieval Byzantium. These contain decisions of Church authorities which were reached in totally different historical epochs and in different Churches, as well as decrees of Byzantine emperors and a number of statutes which are of purely local character. The form in which these codices of local Church law presently exist cannot fully serve as practical guides and are in reality only of historical interest. Today's Church organization outgrew these codices. A significant part of their norms cannot be applied to present conditions and have been changed and even discarded in various autocephalous Churches. Along with these codices the autocephalous Churches publish and continue to publish their own canons either making up a part of local compilations or exist in separate forms. Naturally there is neither external nor internal agreement among all these norms which make up the Canon Law of each local Church.
In all these laws of the local Churches a number of decrees can be extracted which apply to the whole Orthodox Church. These are, in a narrow sense, canons based on decisions of Ecumenical Councils, local Councils, and Church Fathers which were accepted by the whole Church. These enactments were collected in a special compilation by the Russian Church called Kniga Pravil [Book of Rules]. Even though the Church always treated these with special respect they nonetheless were subject to changes, additions and deletions from the time of their promulgation (approx. from IX to X centuries) through later years. But only in extreme cases did the issue of new decrees included directions about the discarding of the corresponding previous canon. This presents one of the difficulties in the application of these canons which has no analogous example in any other form of jurisprudence. At the present time we can not always have the ability to determine which canons are effective and which are not. Thus it is possible to state with certainty that certain canons are no longer effective, for example all canons dealing with the reception into the Church of individuals from ancient heresies which no longer exist, such as Montanists, Novatians, Photinians, Arians, etc., and canons governing institutions which disappeared from the Church such as penitential discipline. It becomes more difficult to deal with canons no longer observed which govern the age of clerics, forbidding the translation of presbyters and bishops, the summoning of councils, courts, ecclesiastical penalties, etc. Inasmuch as they are no longer observed, can they be ignored or should Church life be changed to allow these canons to be effective once again?
It is obvious, in the light of the state of ecclesiastical legislation described above, that the agenda of a future Council must include the question of the codification of canons. It is true that we have no definite indication as what this codification can be. It is entirely possible that the model for the compilation of the general rules for all Orthodox Churches which will be the Corpus Juris Canonis for them, be the one issued recently by the Catholic Church. The compilation of such a Codex is not likely to meet the present needs of the Orthodox Church nor is it likely to become a reality. A general Orthodox compilation of laws would be an innovation which would not reflect the spirit of the Orthodox Church. A unification of canonical legislation assumes such a state of uniformity in the canonical structures of Church life of Autocephalous Churches which the Orthodox world does not know especially from the time of the fall of Byzantium. External administrative uniformity of local Churches would be foreign: this uniformity would be in contrast to the internal unity, the unity of Spirit and Faith. A common compilation of rules would forcibly violate the particularities of life of the local Churches and would do little to contribute to their internal, spiritual oneness. But should a future council attempt to create such a compilation it would be faced with such difficulties which it would not be able to overcome. How would it be possible to find agreement in and combine all existing differences in the legislation of local Churches especially at this time when the separatism of individual local Churches has reached a point unprecedented in the history of Orthodoxy? Finally, by what means can such a compendium be made mandatory, since this would depend not only upon the supreme Ecclesial authority but upon the civil authority in the territories in which these Churches are found? One must hope only that what is understood here is the codification of canons of past Ecumenical and Local Councils which are recognized as obligatory and effective at the present time and which are supplemented by those passed by a future Council.
This lack of complete internal and external unity does not reflect on the one hand, the most characteristic mark of canonical legislation. Such a mark is its incompleteness. In reality, it completely lacks those norms which by analogy with juridical legislation, can be referred to as "fundamental." The more complete canonical compilations not only Eastern but Western as well, have no canons which establish general and fundamental principles of Church organization. These compilations have any number of canons regulating the relationship of bishops among themselves, the interrelation of presbyters and deacons, but we would not be able to find canons defining the very principle of hierarchy. There is not a single rule calling for the Church to have all three orders of clerics. The basic organization of a Christian community headed by a bishop is not to be found. This is especially evident if one takes note that the canons quite thoroughly determine the Metropolitan's administration. The same incompleteness can be found with other canonical problems for example with Ecclesiastical juridical process, as well as Sacraments of Baptism, Eucharist and Matrimony. In textbooks of Canon Law these lacunae are completed by teaching found in the New Testament and in the writings of the Fathers and Teachers of the Church. The Apostolic Canons and the commandments of Christ himself are given the characteristics of canonical norms although not a single Council ruled which of these must be considered as such. We are so accustomed to these gaps that they are not even noticed, but if some historian would attempt to describe the organization of the Church based exclusively on canonical norms he would fall into a number of serious errors. The same mistake is made by those who attempt to base canonical consciousness exclusively on the canons. This attempt is nothing more than an illusion. If canonical norms speak of this or that fact or manifestation of Church life, it can be judged to be correct based on these canonical norms. But, what can be said about something which the canonical norms did not even anticipate? If only that is canonical which corresponds to canons and what does not so correspond is uncanonical then, as we have seen, there is no indication in the canons about the most basic and fundamental areas of Church structures. Finally if all the canonical legislation is taken as a whole as the basis of canonical consciousness then it must be accepted that each local Church enjoys its own canonical consciousness. This not only reduces the dimension of the sphere of canonical consciousness but the possibility of any canonical assessment of any local Church disappears. This concept does not allow for a solution of canonical problems applicable to the whole Orthodox Church but does allow each Autocephalous Church to resolve these problems only for itself. This would undermine the oneness of Orthodox consciousness which unites all local Churches, even in the absence of mutual juridical relations, into the One Apostolic Church. That separatism and that isolation of local Churches which is presently quite evident, can be partly explained by this defect in canonical consciousness.
If the absence of unity and completeness of canonical norms is a hindrance for the acceptance of these norms as the foundation of canonical consciousness then, on the other hand, these features of canonical creativity should not be blamed on those deficiencies. Canonical legislation never had the task to establish basic norms and basic principles of Ecclesiastical organization. These were given once and for all in the dogmatical teaching about the Church which not only anticipates canonical creativity but becomes its basis and precondition. Canonical creativity in the Church has the task to further that which would enable the dogmatical teaching about the Church to find a more correct and complete realization in the given historical condition of the Church's organization, and to protect the Church's life from deviations and error. The content of the dogmatical teaching about the Church determines the content of canonical legislation. A different teaching about the Church would invariably result in different canons since they make up the active force in the life of the Church. Ecclesiastical decisions are in effect the canonical interpretations of the dogma about the Church during a particular moment in the history of its existence. The basic principles of the Church's teachings do not fall into the area of canon law but are a part of dogmatics. This gives canonical norms a special characteristic distinguishing them from juridical norms, and canon law is given those characteristics which make of it a particularly unique law.
The attempts to extrapolate canonical consciousness out of the existing historical forms of Church life or out of the canons themselves are wrong in that they ignore the foundations of Church life and accept it in an empirical and temporary aspect. The foundation of correct canonical consciousness cannot be that which is transient and temporary, that which depends upon the historical moment, but that which in her is not transient and not temporary, which does not depend on historical conditions and historical circumstances. This means that the foundation of canonical consciousness can be found only in the dogmatical teaching on the Church. Such a canonical consciousness is very close to dogmatical consciousness and only differs from it in its direction and purpose. It is the moving force of Church history which is intended to actualize the complete expression of the dogmatic teaching at any given moment, in its canonical expression. It remains without change among the changing forms of Church life and is unique for all times, and inasmuch as the dogmatical teaching remains changeless and unique it becomes universal for all Churches since all Orthodox Churches confess a single dogmatical teaching. It alone has the only correct and true criterion not only for the solution of individual canonical problems but for an evaluation of canonical forms and for a judgment of the character of the canons themselves.
Today the question on the character of canons, i.e. whether they are subject to change or whether they remain absolutely changeless, is of particular practical significance. This problem is not new and repeatedly came to the fore by life itself. The Council in Trullo resolved this on the side of the immutability of canons. On the other hand, canonical creativity was a fact throughout its existence and even decrees of Imperial authority in effect repealed purely Ecclesiastical enactments. How little the Imperial authority felt constrained can be seen in the opinions of jurists in the days of Manuel Comnenus, that his royal decrees superseded not only the Code of Justinian but collections of canons as well. It is true that these views did not find official endorsement and were completely forgotten with the fall of Byzantium, but the decision of the Trullan Council found broad acceptance. It is not uncommon today to find, if not in literature then in various Church circles, the conviction that equates the canons, as to their obligation and immutability, with dogmatic formulations. It is not really necessary to point out that such a view can be derived not only from theological misunderstanding but from ignorance. To insist upon the absolute immutability of canons is tantamount to the admission that not only our generation but preceding ones, have been excluded from the Church. It is sufficient to point to the ninth Apostolic Canon, which decrees the excommunication all laymen (as well as the eighth for clerics) who "do not remain for prayer and the Eucharist to the end." If all canons are immutable then they all are, and remain, in force. It is not likely that this view is agreeable to those who defend it. Furthermore, such a teaching does not take into account that state of ecclesiastical legislation described above.
The theological misunderstanding consists in that this opinion does not take into account that the absolutely immutable character of dogmas is not conditioned upon by their being enacted by Councils and accepted by the Church, but because they are an expression of absolute truth. Their formulation by Councils and their acceptance by the Church are but the solemn witness of their truth. They express not what is temporary but what is eternal, but incidentally, just as do the canons, they have to do with the temporary forms of Church life, even though these forms can be considered unchangeable within the limits of empirical existence.
Canonical scholarship cannot accept this point of view about the canons. On the one hand, one can find both in the Orthodox but especially in the Catholic canonical literature, another view which defines as immutable only those canons which are based on Divine law. All those norms, which emanate from the clearly expressed Divine will contained in Scripture and in Tradition have an immutable and an absolute character, all other norms are related to the area of human law and thus can be subject to change. Of course, the believer cannot knowingly encroach upon the absolute character of Divine commandments but it appears that the distinction between jus divinum and jus humanum is far from certain. In practice most of the arguments are brought about by the question of the character of that or another decree, is it attributable to Divine or to human law. The norms affirmed in the Gospel are indisputable from this point of view, but with respect to norms found in the Epistles, one cannot always be categorical. The Apostle Paul in certain cases clearly indicates the source of his rules, and in other cases there are no such clear indications. It is with great difficulty that one discovers the teaching about the immutable character of norms, based on Divine law in those cases when some of those norms have been subject to change in the life of the Church. Even Christ's commandments, if they be given a canonical meaning, assume a temporary character, i.e. they are considered obligatory for certain epochs and not obligatory for others (e.g. those dealing with the dissolution of marriage and the grounds for it). The Church structure of the Corinthian community described by Apostle Paul has existed for a few decades. Neither was the so-called Apostolic decretal -- the decision of the Jerusalem Apostolic council considered of long duration. There is no need to give any more such examples, since we have seen more than once how the absolutization of the temporary leads to the relativization of the eternal.
It is only through the correct canonical consciousness that a correct relationship to canons is to be found. Not a single one of Christ's commandments carries a character of a positive norm. They are all eternal, immutable, all relate to the area of dogmatical teaching about the Church, on marriage, on baptism, etc. Christ did not establish any canonical structure for his Church, nor did he give any canonical norms. "...Who made me a judge or divider over you?"(Lk 12:14) From the time of the Apostles the force which generates law was without exception found in the Church. The right to "bind and loose," potestas clavium [the power of the keys] included within itself the right to establish canonical norms. Thus there can be no talk of a division of canons between those based on Divine law and others based on human law. They all flow out of the right, given to Church authority, to promulgate directives which would regulate the order of the Church. Of greater importance is that what these directives, which the Church can and must give, do not determine the foundation of the Church's organization as we have seen, but are meant to expose a more complete and more accurate realization of these foundations in each given historical epoch. They are temporary, but not just in a sense that a part of them is called to existence by a complex of purely external reasons, but in that they all are a part of that which in the Church is temporary. As temporary directives, the canons are mutable, even in the case when they directly refer to one or another statement of the Apostles or even of Christ. Of course, these statements in themselves are absolute and immutable but they do not belong to canons but only show that Church authority, issuing decisions, considered it essential to refer to the dogmatical foundation of its directives. The fiftieth Apostolic Canon demands the deposition of a presbyter or bishop who performs the Sacrament of Baptism with one immersion since Christ Himself commanded: "Go therefore and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Spirit." The Church can change this, its own, canonical decree, increasing or decreasing the punishment for the guilty party, but this will not subject the words of Christ to a change, inasmuch as it does not belong to a canonical norm but belongs to the dogmatical teaching on the Sacrament of Baptism, of which this decree is an interpretation.
Frequently there ate strange points of approach of Orthodox teaching with Protestantism but these really, are only points, beyond which begins a substantial diversion. The principle of mutability of all canonical enactments in Protestantism flows out of completely different beginnings than in Orthodoxy. With us, behind the mutability of canons stands canonical consciousness or, in the end result, the dogmatical teaching on the Church. Every canonical decree is related to the exposition of an absolute truth which lies as the basis of canonical consciousness. If this exposition can and even must be changed then the truth which lies in the basis remains forever immutable. Different historical periods, different spiritual development, can demand changes or revocation only of that external cover of the truth, but they cannot change the truth itself. Just as in the teaching about the structure of the Church and just on the question of the mutability of canons, Protestantism overlooked this truth.
In that the canons can be changed does not mean that they must be changed or that they can be changed by the personal whim of every Church member or even of a whole Church community. The canonical creativity of the Orthodox Church in its fullness, notwithstanding this or that detail, is an experience of many years of the Church's and of its consciousness, of its attempt towards the realization of the teaching of the Church in different historical epochs. We only continue that which was not started by us although we are somewhat inclined to think that history begins only with us. Thus our activity always has a combination of tradition and creativity, and tradition is the fulcrum for our creativity and a guarantee that even our creativity will not end with us. None the less, all human creativity is a manner of destruction of the past, that past which ceased to be a creative tradition, and turned into inertia and stagnation interfering with creativity. We can and must change Church decrees but only when they ceased to be canons, when they can no longer carry our their purpose -- to direct Church forms towards a more complete and a more better realization of the teaching on the Church, i.e. when they cease to be those decrees through which canonical consciousness can be expressed. There are times when canonical truth is on the side of those who violate one or another of the canons, and not on the side of those who comply with them and demand compliance. We must prove the truthfulness of such a paradox from experience, and this paradox is engendered from the conflict of canonical consciousness as the creative principle and as the highest criterion and a canonical consciousness as a blind and dead compliance with the letter of the law, a service to the letter, which finds its expression in the canons. A deep and tragic conflict of two types of canonical consciousness from which only one eternally comes forth as the creative moment, and the other, the inert and fossilized form of Church life.
The designation of canons as Ecclesiastical prescriptions is to promote -- positively or negatively -- that the Church life would more closely realize its dogmatical teaching. The closer the ecclesiastical norms approach dogmatical teaching, the greater is their approach towards the possession of immutability, but this immutability does not lie in the canons but in the dogmatical teachings which they express. Therefore we believe that certain canonical decrees of the Councils will preserve their strength to the end of time and for us, they are sacred just as are those dogmas which they express.
In the passage of time canonical consciousness always remains one, always equal to itself. Through its unity the various forms of Church life are not seen as separate moments in history, but are tied together into one intact process, uniting the first point of Church structure -- the charismatic structure -- with the foundation of our ecclesiastical organization. It urges us to look not backwards but through the present -- ahead, into the future. In the life of the Apostolic Church what was beyond value was not the form of that life but that through this form the Church life almost completely, as an exceptional image, realized the dogmatical teaching on the Church. If we were to transpose this structure mechanically into our life, we would accomplish the ideal of Church life that much less than under the present conditions. We can only hope that our canonical consciousness achieves that clarity which it had in Apostolic times. The more we manifest the dogmatic truth in our Church life the closer we would approach the apostolic times, although under our external structure we would move even farther from it.
Canonical consciousness demands from us a constant creativity of Church life, but not only creativity but new forms if this becomes necessary, but a creative concern for older forms, i.e. so they can become for us not a self-satisfying value, but really a form through which the dogmatical teaching is realized. We must likewise approach the canons with creativity. Should it happen that some ecclesiastical decree no longer reflects its purpose, then we are obliged to reject it, since not only is that which corresponds to canons canonical, but the canons themselves may be "canonical" and not "canonical".
However it would be a mistake to think that the canonical consciousness is of such magnitude that it can be determined for any concrete situation. There are no such magnitudes in the Orthodox Church, not only in the sphere of canons but in the area of dogma. Temporary distortions and loss of direction are always possible. However, truth was given to the Church and thus the truth always abides in her, even though we may not be able to determine this formally. A different point of view would indicate a lack of faith in the Church, an understanding of the Church as only a human and not a Divine foundation. That which may not be possible in a formal order is possible on the order of grace.
in Put' No. 39 (1933) Appendix
Translated by Fr. Alvian Smirensky.
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