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Diversity in Unity: Approaches to Church Order in Rome and in Byzantium*

  • Clarence Gallagher (a1)
Abstract

This evening I propose to offer you some of the results of my research for a book I have recently completed. I examined the work of canonists, in the Eastern and Western parts of the Christian community. I explained what they did and indicated the contribution they made to the development of canon law in the first millennium of Christianity. The book deals primarily with Rome and Constantinople, though there is an excursus into Methodius and the Slavs and into the Churches in Syria and Persia. What binds the chapters together, and makes them more than a collection of disparate essays, is the parallel discussion of three issues. These are: the constitution and governance of the Church (monarchical, patriarchal/imperial, synodal), the discipline of the clergy (married or celibate) and the question of re-marriage in church after divorce

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1 The book will be published by the Centre for Byzantine. Ottoman and Modern Greek Studies. University of Birmingham, in the series: Byzantine and Ottoman Monographs. The title will be: Church Law and Church Order in Rome and Byzantium. A Comparative Study. The Publisher will be Ashgate Publishing Limited.

2 The Apostolic Canons (Regulae Ecclesiasticae Sanctorum Apostolorum) was a collection of eighty-five laws allegedly given to Pope Clement I by the Apostles. They were probably put together in Antioch towards the end of the fourth century and are concerned mainly with the duties of the clergy. They were regarded in the West as apocryphal and Dionysius translated only the first fifty of them. They were accepted as sources of church law in Constantinople and included in their official canonical collections. See Gaudemet, J.. Les sources du droit de l'Eglise en occident du iie au viie siècle (Editions du Cerf, Paris 1985) pp 2426.

3 In his first version Dionysius had included canons from the Council of Carthage of 419. In his second edition he interpolated a large number of canons from earlier councils held at Carthage under Aurelius. Aurelius held the primatial see of Carthage from c.391 until his death in 427, and, under the influence of St Augustine, called a number of episcopal synods between 393 and 419. See Munier, J., Concilia Africae A.345–A.425, (Corpus Christianorum Series Latina, 149) (Turnhout 1974). See Cross, F. L., ‘History and Fiction in the African Canons’, Journal of Theological Studies, NS 12 (1961), pp 227247. As we shall see, this Codex canonum Ecclesiae Africanae was translated into Greek and included in the Synagoge of John Scholastikos.

4 There is no obvious explanation as to why Dionysius chose to publish these particular 38 Decretal Letters out of the 460 we know existed at that time. See Pitra, J.B. in Analecta Novissima, t.I. p 37.

5 The fact that about one hundred medieval manuscripts of the Pseudo-Isidorian Decretals still survive show that it was probably the most frequently copied collection of the century. Its influence on the development of western canon law can hardly be exaggerated. See Brundage, James A.. Medieval Canon Law (London and New York 1995) pp 2627.

6 The following is a list of the fourteen titles indicating both how the matter is divided and the contents of the collection. There were really two parts to this Nomokanon: in the first part there was the systematic collection in fourteen titles. containing the imperial constitutions, the nomoi; and in the second part there was the chronological collection of all the canons, as listed in the second canon of the Council in Trullo. with the addition of the canons that had been promulgated since Trullo. Because only references to the canons were given in the first part, it was essential to have access to the second part as well. Title I On theology and the orthodox faith (38 chapters) Cap I: Concerning theology and the orthodox faith. References to the following canons: Canones Apostolorum, canons 49–50; Synod of Constantinople, cc.1.5; Synod of Carthage. canon 2 [later, Synod VI, cc. 1, 73, 81] Lex. Lib I Codicis, constitutio 1,5,6,7,8. Title II On the building and consecration of churches (3 chapters). Title III On prayers and psalms; on the duties and vestments of readers, cantors and ministers (22 chapters). Title IV On the catechumenate and holy baptism (17 chapters). Title V On those who treat the church with disrespect, and on those who eat in church (3 chapters). Title VI On the offering of fruits (3 chapters). /cont. Title VII On Lent. Easter and Pentecost: on Sundays and Saturdays and on genuflection (5 chapters). Title VIII On parishes and on the behaviour of bishops and clerics: on pilgrimages and annual synods; on doctrine and letters of peace: and on the honour to be shown each other (19 chapters). Title IX On sins and judgments of bishops and clerics: on excommunication and deposition: on penance and absolution of sins (39 chapters). Title X On the administration of church property and on the private property of the bishop (8 chapters). Title XI On monasteries and monks (16 chapters). Title XII On heretics. Jews and gentiles (18 chapters). Title XIII On the laity [duties. marriage, and other matters] (41 chapters). Title XIV On matters pertaining to all in common (7 chapters).

7 This Collectio Tripartita should not be confused with the Tripartita. a Latin collection of canon law attributed to Ivo of Chartres and used by Gratian. The Greek collection of civil laws is divided into three sections: I. Extracts from Justinian's Codex II. Texts taken from the Digest and Institutiones. III. Summaries of a number of Justinian's Novellae.See Collectio Tripartita. Justinian on Religious and Ecclesiastical Affairs, edited by van der Wal, N. and Stolte, B. H. (Egbert Forsten, Groningen 1994).

8 Novella 131. (545 AD) Chapter I: ‘Therefore we confirm that those holy ecclesiastical rules have the force of law. which were issued or confirmed by the four holy councils: that is, by the 318 fathers at Nicaea. and the 150 holy fathers at Constantinople, and in the first [synod] at Ephesus in which Nestorius was condemned, and at Chalcedon. in which Eutyches was excommunicated along with Nestorius. For we accept the dogmas of the above-mentioned four councils just like Holy Scripture and we keep their rules just like laws’.

9 These ‘canons’ from the Fathers can be found in Joannou, P.P. (editor), Discipline Générale Antique (IIe–IXe s.). vol II, Les canons des Pères Grecs (Rome 1962). Also. Patrologia Graeca. vol 138. cols 455–936.

10 It is called the Synod in Trullo because it was held in the domed hall (τροūλλος/ cupola) of the imperial palace in Constantinople and not in Hagia Sophia. Editions of the 102 Trullan canons in Greek can be found in Rhalles, G.A.Potles, M., Συνταγμα των θειων και ιερων κανονων. (Athens 18521859) vol II, pp 295554:Joannou, P.P., Discipline Générale Antique (IIe–IXe s.), vol I, l, Les canons des conciles oecuméniques (Rome 1962) pp 101241 (in Greek. Latin and French):Nedungatt, G. and Featherstone, Michael, The Council in Trullo Revisited (Rome 1995) pp 43185 (in Greek, Latin and English).

11 On the Trullan Council, see Laurent, V., ‘L'oeuvre canonique du Concile in Trullo (691–692). source primaire du droit de l'Eglise Orientale,’ in Revue des Etudes Byzantines. 25 (1965), pp 741.Ohme, Heinz, Das Concilium Quinisextum und seine Bischofsliste: Studien zum Konstantinopolitan Konzil von 692 (Berlin and New York 1990) (This is a critical edition of the list of the signatories to the Quinisext canons of 692—225 bishops headed by the signature of the emperor Justinian II);Hussey, J.M., The Orthodox Church in the Byzantine Empire (Oxford 1986) pp 2429.Ohme, Heinz, ‘Begegnung zwischen Ost und West in den kanones des Concilium Quinisextum,’ Atti del Congresso Internazionale: Incontro fra Canoni d'Oriente e d'Occidente (Bari, 1994) vol 2, pp 101122.Gallagher, C., S.J. ‘Sacri Canones nel Decretum di Graziano.’ Ius in Vita et Missione Ecclesiae (Vatican 1994) pp 762771.Salachas, Dimitri, ‘La Normativa del Concilio Trullano commentata dai canonisti bizantini del XII secolo,’ Oriente Cristiano 2–3/1991, pp 3–103.

12 Canons 1–2, confirming previous legislation; canons 3–39. concerning the clergy; canons 40–49, concerning monks; canons 50–103. concerning the laity.

13 Most of the canons simply renewed the legislation of previous councils, but a few were directly opposed to the usages of the Church at Rome. For example, canon 13, which permitted priests and deacons to live as married men, claiming that this was more in keeping with the strict Apostolic tradition; canon 36, which repeated canon 3 of the First Council of Constantinople and canon 28 of the Council of Chalcedon. which granted Constantinople privileges ‘equal to those of the see of older Rome’; canon 55, which proscribed the Roman practice of fasting on Saturdays in Lent; canon 67, which stipulated that one had to abstain from blood and from what is strangled, a usage permitted in the Western Church; canon 82, which forbade that Christ be portrayed as a lamb, another Western custom. This is admittedly, a small number of canons, but they betray an aggressive stance towards Rome, which is new, and which was unacceptable in Rome. See Laurent, V., ‘L'oeuvre canonique du Concile in Trullo (691–692)’, pp 32–33.

14 John, Pope VIII (872–882) formulated the approach that would be taken at Rome towards the Trullan canons. ‘Ergo regulas quas Graeci a sexto synodo perhibent editas ita in hac synodo [i.e. Nicaea II, 787] principalis Sedes admittit ut nullatenus ex his illae recipiantur quae prioribus canonibus vel decretis sanctorum Sedis huius pontificum aut certe bonis moribus ineviuntur adversae.’ [Therefore the principal See accepts in this synod [i.e. Nicaea II, 787] the regulations that the Greeks hold were produced by the sixth synod, but in such a way that on no account are those accepted which go against earlier canons or decrees of the holy pontiffs of this See or which are certainly contrary to sound morals]. Anastasius Bibliothecarius quotes these words of Pope John VIII in his introduction to the Acta of the Second Council of Nicaea. See V. Laurent, op.cit., p 36. The Patriarch Tarasius, at this Second Council of Nicaea, claimed that the Quinisext canons belonged with the Sixth Ecumenical Council, the Third Council of Constantinople (681), as a supplement. This is now generally accepted. See Ohme, Heinz, ‘Diesogenannten “antirömischen Kanones” des Concilium Quinisextum (692)—Vereinheitlichung als Gefahr f r die Einheit der Kirche,’ in G. Nedungatt and Michael Featherstone. The Council in Trullo Revisited (Rome 1995) pp 307321.

15 See Every, G.. The Byzantine Patriarchate, 451–1204. (2nd edn revised, London 1962) pp 102112.

16 The bishops who took part were almost all from eastern dioceses. Rome did not send a delegation but there were some western bishops present.

17 ‘We joyfully embrace the sacred canons and we maintain complete and unshaken their regulation, both those expounded by those trumpets of the Spirit, the apostles worthy of all praise, and those from the six holy universal synods assembled locally for the promulgation of such decrees, and from our holy fathers.’ Nicaea II (787), canon 1. (English translation in Tanner, N., Decrees of the Ecumenical Councils (London and Washington 1990) vol I, p 139). Ivan Žužek argues that the opening paragraphs of the apostolic constitution. Sacri Canones, is virtually a recognition of the importance of the Trullan canons by Pope John Paul II. See Žužek, Ivan, S.J ‘Common Canons and Ecclesial Experience in the Oriental Catholic Churches.’ Understanding the Eastern Code (Rome 1997) p 53.

18 An edition of Part I, by Justell, C. (Paris 1615) is reproduced in Patrologia Graeca, vol 104. Nomokanon cum commentariis Theodori Balsamonis Patriarchae Antiocheni. coll. 975–1218. Part II, the chronological collection of canons, is published in Patrologia Graeca, vols 137 and 138 (according to the edition by W. Beveridge's Synodikon. of 1672). The two parts are separated in this way in Migne's Patrology because the Nomokanon is listed under the works of Photius, whereas the chronological collection is included under the writings of the twelfthcentury commentator, Theodore Balsamon.

19 See Dvornik, F., The Photian Schism (Cambridge 1948) pp 175ff.Hussey, J. M., The Orthodox Church in the Byzantine Empire (Oxford 1986) pp 8386.

20 Tanner, N., Decrees of the Ecumenical Councils, vol I. pp 163165.

21 For a discussion of the different ideas of the Church that are mirrored in each of these two councils, see Stephanou, P.. ‘Deux conciles, deux ecclésiologies? Les conciles de Constantinople en 869 et en 879,’ in Orientalia Christiana Periodica, vol 39 (1973) pp 363407.

22 For the acta, see Mansi, G.D., Sacrorum Conciliorum nova et amplissima collectio, vol XVII. 468473.

23 There is a well-documented discussion of Patriarch Photius and his relations with Rome by Beck, Hans-Georg in Handbook of Church History. Vol III, The Church in the Age of Feudalism, ‘The Byzantine Church in the Age of Photius’ (London 1969) pp 184193.

24 Boomjara, John L.. ‘The Photian Synod of 878–879 and the Commonitorium (879),’ Byzantine Studies, 9 (1982) p 23: ‘Beyond its immediate decisions regarding Photius and the restoration of peace within the Byzantine Church and between the Churches of Rome and Constantinople, the affirmation of mutuality and equality in customary and disciplinary procedures may prove to be an ecumenical reference point from which to begin a serious ecumenical dialogue.’ For a detailed discussion of this synod, see Meijer, Johan, A Successful Council of Union. A Theological Analysis of the Photian Synod of 879–880 (Analecta Vlatadon, Thessaloniki 1975).

25 The words filioque ( and from the son) were added to the Nicene Creed at a Spanish council in Toledo in 589. This was intended to underline the divinity of the Son and had support in the teaching of St Augustine. For a clear and well-documented study of the Trinitarian controversy, see Haugh, R., Photius and the Carolingians. The Trinitarian Controversy (Massachussetts 1975). The Frankish missionaries used this interpolated Creed in the ninth century. This was unacceptable to Eastern Christians, both because it was an insertion into the Creed and because they considered that it entailed an unsound theology of the Holy Trinity. Photius, in his Mystagogia, totally rejected the theology behind the introduction of the filioque by the Carolingians and his arguments are still used today by Orthodox theologians. The expression was not introduced into the Creed in Rome until the eleventh century, and this was at the insistence of the Saxon emperors. See Heath, R. G., ‘The Western Schism of the Franks and the Filioque,’ Journal of Ecclesiastical History, vol XXIII (1972) pp 97113. For an official clarification of the Catholic Church's teaching on the filioque, see the document published in September 1995 by the Pontifical Council for the Promotion of Christian Unity.See ‘Greek and Latin Traditions Regarding the Procession of the Holy Spirit.’ Eastern Churches Journal, vol 2 no.3 (1995), pp 35–46.

26 In the Middle Ages and earlier there was, of course, quite a different attitude towards forgery and plagiarism than there is today. All texts were treated with greater freedom than would now be tolerated. One thinks of the speeches in Thucydides and Tacitus, for example. However, it has to be admitted that the Pseudo-Isidorian forgers brought this to a fine art!

27 The earliest product of the workshop was a collection of canons and decretal letters, now known as the Hispana Gallica Augustodinensis. There followed two collections of civil laws and decrees: The Ordinances of Angilram (a treatise on procedural law), and The Capitularies of Benedict the Levite, purporting to be a collection of decrees from the Frankish royal chancery, mainly in defence of the clergy.

28 There will be a more detailed treatment of all four collections in my book.

29 It is a large collection, filling one volume of Migne's Patrologia Latina, vol 130. This reproduces the 1530 Paris edition by Merlin, J.. The most thorough discussion of the False Decretals is by Fuhrmann, Horst. Einfluss und Verbreitung der pseudoisidorischen Fälschungen von ihren Auftauchen bis in die neuere Zeit (Schriften der Monumenta Germaniae Historica. 24. I. II. III) 3 vols (Stuttgart. 19721974). See also Fuhrmann, H.. ‘False Decretals’. New Catholic Encyclopedia (New York–London 1967) vol 5. pp 820824

30 As has already been remarked, the name of St Isidore is often associated with the seventhcentury Spanish canonical collection, the Hispana. It is now generally agreed that the Hispana was not the work of St Isidore, but the result of joint activity by the Spanish bishops.

31 Edictum Domini Constantini Imperatoris. Migne, Patrolgia Latina. vol 130. cols 245252. An edition by Fuhrmann, H. is in Monumenta Germaniae Historica, Fontes iuris Germanici antiqui. X (1968). pp 278–80.

32 The Donatio Constantini. This purports to be a constitutional grant by Constantine the Great to Pope St Sylvester I in which the emperor, in thanks giving for his baptism and his cure. handed over to the Bishop of Rome imperial power, the Lateran Palace and rulership over Rome, Italy and the West. Constantine then left for Constantinople. It is probably an eighthcentury forgery. It was quoted frequently by popes from the time of Pope Hadrian in the eighth century. Pope Leo IX in 1053 made official use of it and it was included in the Decretum of Gratian (D.96. can. 14). It is an interesting expression of the political doctrine of the Bishops of Rome at that time. It would be used later by Balsamon. in twelfth-century Constantinople, to support the claims of Constantinople. It was proved to be a forgery in the fifteenth century by Nicolas Cusa and Lorenzo Valla. See Ullmann, W., ‘Donation of Constantine.’ New Catholic Encyclopedia, vol 4. pp 10001001.

33 Patrologia Latina. vol 130, cols 243–610.

34 Fuhrmann, H., New Catholic Encylopaedia, vol 5. p 821. See also Fuhrmann, H.. Einfluss und Verbreitung der pseudoisidorischen Fälsclningen, vol I, pp 137150.

35 Schafer Williams listed 80 codices containing the whole work of which ten are from the ninth century. Others have since been discovered. He also lists 47 excerpta which were made from the False Decretals. See Williams, S.. Codices Pseudo-Isidoriani (New York 1971).Mordek, H. noted five further manuscripts. ‘Codices Pseudo-Isidoriani: Addenda zu dem gleichnamieen Buch von Schafer Williams,’ Archiv für Katholisches Kirchenrecht. 147 (1978), pp 471478.

36 It is interesting to note that St Saba of Serbia (a monk of Mount Athos) between 1190 and 1200. made a selection from this ‘Nomokanon of Photius’ with the commentary of Aristenas (not that of Balsamon) and translated this into Slavonic. This is the origin of the Kormčaja Kniga. the Book of the Rudder, which became the most important canonical collection for the Russian Orthodox Church. See uek, Ivan, Kormčaja Kniga. Studies in the Chief Code of Russian Canon Law (Rome 1964).

37 See Herman, E., ‘Ius Iustinianeum qua ratione conservatum sit in iure ecclesiastico orientali.’ Acta Congressus luridici Internationalis, vol II (Rome 1935) pp 145156.

38 In fact, a full primatus iuris was claimed by Leo I, Gelasius I, Vigilius and others, and the Byzantines recognised this when it suited them, as, for example, the appeal of the supporters of Patriarch Ignatius against the appointment of Photius as Patriarch in 861, and, towards the end of the ninth century, by the Emperor Leo VI concerning his fourth marriage. Pope Sergius III recognised the validity of the marriage, going against the the decision of the Patriarch of Constantinople, who was forthwith deposed by the emperor. See Hussey, J.. The Orthodox Church in the Byzantine Empire (Oxford 1986) p 105.

39 According to the (forged) Constitutum Constantini, Constantine is alleged to have decreed, out of reverence for blessed Peter, that Pope Sylvester ‘should have primacy over the four principal Sees of Antioch. Alexandria, Constantinople and Jerusalem, as well as over all the churches of God throughout the whole world: and the Pontiff who occupies at any given moment the See of that same holy Roman Church shall rank as the highest and chief among all the priests of the whole world and by his decision all things are to be arranged concerning the worship of God or the security of the faith of Christians.’ The forgery continues: ‘To correspond to our own Empire and so that the supreme Pontifical authority may not be dishonored, but may rather be adorned with glorious power greater than the dignity of any earthly empire, behold, we give to the often-mentioned most holy Pontiff, our father Sylvester, the Universal Pope, not only the above-mentioned palace [the Lateran palace in Rome], but also the city of Rome and all the provinces. districts and cities of Italy and the Western regions, relinquishing them to the authority of himself and his successors as Pontiffs by this our Imperial grant.’ The emperor goes on to say that since he is going to transfer his throne to Constantinople, it is only right that no earthly emperor should rule over the place where the head of the Christian religion had been set up by the ‘celestial emperor’. He adds that anyone who does not accept this decree ‘shall perish with the devil and all the wicked by burning in the lowest hell’! The Pseudo-Isidorian Decretals in Patrologia Latina, vol 130, cols 250–252. The Enalish translation is from Barry, C.J.. O.S.B. (Editor), Readings in Church History (Maryland 1985) p 239.

40 See Ullmann's, Walter review of Congar's, Y.L'Ecclésiologie du haut Moyen Age, Journal of Theological Studies. 21 (1970) pp 224225.

41 See Gilchrist, J. in The New Catholic Encyclopedia, vol I. (1967) p 585.Cushing, Kathleen G., Papacy and Law in the Gregorian Revolution. The Canonistic Work of Anselm of Lucca (Oxford 1998) especially pp 7278.

42 Cushing, K.G., Papacy and Law in the Gregorian Revolution, p 75.

43 For a well-documented discussion of this point, see Cushing, K.G., Papacy and Law in the Gregorian Revolution, pp 72–78; and pp 210–212. where she provides a table showing the ‘Dispersion and Disposition of Pseudo-Isidorian Texts in the Collectio canonum.’ According to this. Anselm had taken over thirty-three Pseudo-Isidorian texts that dealt with the power and authority of the Apostolic See of Rome.

44 See Patrologia Latina, vol 130. col 620. In another forged letter to Eastern Bishops at Antioch. Pope Julius is said to have written that, ‘without the authority of this holy See, no one ought to celebrate councils, or call bishops to a synod or condemn them, all of which you have not been afraid to violate.’ ‘ut absque ejus sanctae Sedis auctoritate nullus deberet, aut concilia celebrare, aut episcopos ad synodum convocare, vel damnare, quae omnia vos temerare non timuistis.’ Latina, Patrologia, vol 130, col 627. This would be taken over by Gratian in the Decretum (C.3. q.6. can.9). Gratian has his own comment on this. While in fact it is true that many bishops had been condemned and replaced without any consultation of the Roman See. Gratian noted that this was tolerated ‘pro bono pacis’ (C.3, q.6, d.p.c.9). It is ironic that such forged letters should be attributed to Pope Julius I, because in fact he was the author of diplomatic letters to Eastern bishops concerning St Athanasius. (See St Athanasius, Apologia contra Arianos, Patrologia Graeca, vol 25. cols 282–291).

45 See the Letter of Pope Damasus I to St Jerome and Archbishop Stephen and three African Councils in which he states that it is manifest to everyone from the witness of innumerable decrees that a bishop should not be condemned without the decision of the Prince of the Apostles. Patrologia Latina, vol 130, col 665.

46 For a number of texts from the False Decretals on the Roman primacy that were included in later canonical collections, see Cushing, Papacy and Law in the Gregorian Revolution, pp 74–75 and p 112 with note 34; also pp 72–78, and pp 210–212.

47 For a brief account of the development of a centralised, monarchic ecclesiology in the Latin Church, see Ménard, E., L'Écclésiologie Hier et Aujourd'hui (Paris 1966). Also Congar, Yves. Power and Poverty in the Church (London 1964).Gallagher, C., ‘Canon Law and Ecclesiology I’. The Way, January 1982. pp 50–60.

48 As Eamon Duffy observes, ‘Deprived of the support of the empire, the papacy became the possession of the great Roman families, a ticket to local dominance for which men were prepared to rape, murder and steal. A third of the popes elected between 872 and 1012 died in suspicious circumstances— John VIII (872–82) bludgeoned to death by his own entourage. Stephen VI (896–7) strangled, Leo V (903) murdered by his successor Sergius III (904–911). John X (914–28) suffocated. Stephen VIII (939–42) horribly mutilated.’ Saints and Sinners. A History of the Popes (Yale University Press 1997) pp 82–83. One of the most distressing cases is that of Pope John XII. He was elected when he was only eighteen, at the insistance of his father. Alberic, and died at the age of twenty-seven, ‘allegedly from a stroke while in bed with a married woman’. E. Duffy, op.cit., p 83. Edward Gibbon comments on this short reign of John XII. After mentioning the charges of simony and licentious pursuits of gaming and hunting that were made against the young pope, Gibbon continues: ‘But we read with some surprise that the worthy grandson of Marozia lived in public adultery with the matrons of Rome; that the Lateran palace was turned into a school for prostitution; and that his rapes of virgins and widows had deterred the female pilgrims from visiting the tomb of St Peter, lest, in the devout act, they should be violated by his successor’.Gibbon, E.. The History of the Decline and Fall of the Roman Empire (London 1901) vol V. p 298.

49 ‘Before and after Constantine, the Roman emperor was regarded as the providential manager of earthly affairs.’ Meyendorff, John, Imperial Unity and Christian Divisions. The Church 450–600 AD (St Vladimir's Seminary Press, New York 1989) p 30.

50 See Corpus luris Civilis. Vol III. Novellae. edited by Schoel, R. and Kroll, G. (Dublin/Zürich. 1972) p 36.

51 See Herman, E., The Cambridge Medieval History. Vol IV, Part II (Cambridge 1967), Chapter XXIII.‘The Secular Church’, pp 105–133. See also Ecloga Basilicorum, ed. Burgmann, L., in Forschungen zur Byzantinischen Rechtsgeschichte. ed. Simon, Dieter. 15 (Frankfurtam Main 1988) pp. 140, 264, 353.The Ecloga Basilicorum was a legal commentary composed in 1142 on a selection of laws from the Basilika (from the first ten books). It should not be confused with the earlier Eclogu. a law book issued in Constantinople in 741 which provided, in eighteen titles, a concise compendium of the law. This was replaced in the ninth century by the Eisagoge (Epanagoge).

52 See Beck, H.-G.. ‘Nomos, Kanon und Staatsraison in Byzanz’. Österreicher Akademie der Wissenschaft. Philosoph.- Hist. KL, Sitzungsberichte 384 (Vienna 1981).

53 For a discussion of this point, see Macrides, Ruth, ‘Nomos and Kanon on paper and in court’, in Church and People in Byzantium, edited by Morris, Rosemary (Birmingham 1986) pp 6185.

54 ‘In our desire to observe all the decrees of our holy Fathers, we renew the canon which declares that Synods of the bishops of each province are to be held each year, wherever the metropolitan should decide.’ Council in Trullo, canon 8. This was renewing and confirming clear legislation from earlier councils: the First Council of Nicaea (325), canon 5; Chalcedon. canon 19 [included in Gratian, D.18, canon 6], Apostolic Canons, canon 37; Council of Antioch (341), canon 20. This canon is included by Gratian in D.18, c. 15, and attributed to a council held by Pope Martin. The Roman Correctores point out that this ‘Pope Martin’ was a bishop of Braga (Bracarensis) from whose collection of the Greek synods Gratian often quotes; the Correctores also note, ‘For bishops in old times were usually called popes’ (Antiquitus enim episcopi papae dicebantur). Council of Carthage, canons 76, 95. We have already seen how episcopal synods were frequently held by the African Church in the fourth and the fifth century.

55 Tanner, N.. Decrees of the Ecumenical Councils, vol I, p 144. These canons are not to be found in the False Decretals since that compilation does not include the canons of the Second Council of Nicaea. Nor does it include the Trullan canons. See Gratian. Concordia Disconlantium canonum, D.18, c.7.

56 The first seven ecumenical councils—from Nicaea I (325) to Nicaea II (787)—were, and are still, accepted as authoritative by both Rome and Constantinople. De Vries, W., Orient et Occident. Les structures ecclésiales rues dans l'histoire des sept premiers conciles oecuméniques, Paris 1974.De Vries has made a study of these councils with a view to finding out how the structures of the Church were understood in these first eight centuries of Christianity. His research has shown that there were divergent views about the exercise of authority in the Church right from the time of the Council of Chalcedon in 451. The Eastern bishops stressed the collegial nature of church authority, while Pope Leo the Great stressed the monarchical. De Vries maintains, for example, that the bishops at the Council of Chalcedon did not simply accept as decisive the Tomus Leonis, on its own. Otherwise there would have been no need for a debate on it in the council (Orient et Occident, pp 141–145). De Vries has shown that the study of the first seven councils shows that the Greek East and the Latin West differed profoundly on the way of conceiving the Church as an institution. As Y. Congar points out in his presentation of De Vries's book, we already knew that there were divergent views in the East and in the West with regard to the exercise of the power of jurisdiction. What de Vries has done has been to demonstrate this with precise historical documentation. He has encouraged us to re-read the history of these centuries with a more critical eye (Orient et Occident, p. 3). See also Congar, Y., L'Ecclésiologie du haut Moyen Age (Paris 1968) especially Section C:L’Orient. Accord et Divergences Écclésiotogiques avec Rome et l'Occident’, pp 324–393. Here Congar illustrates how two canonical traditions resulted in two conceptions of the life of the Church.

57 For example, Cochini, C., The Apostolic Origins of Priestly Celibacy (San Francisco 1990). The thesis of Cochini's book is that the obligation of continence for bishops and priests goes back to Apostolic times. Not everyone has found his arguments convincing. See, for example, the detailed review by Crouzel, Henri, ‘Une nouvelle étude sur les origines du célibat ecclésiastique.’ in Bulletin de Litterature Ecclésiastique 83 (1982), pp 293–97. Roman Cholij, accepting the views of Cochini. attempted to prove the thesis that, despite the fact that for many centuries the early Church had sacred ministers who were married, from the Apostolic Age onwards they were required by law to abstain from conjugal relations after ordination:Cholij, Roman, Clerical Celibacy in East and West (Fowler Wright Books, 1988). This too has been found unconvincing by many. See, for example, the review by Callam, D. in The Journal of Theological Studies, vol 41 (1990), pp 725729: also Lawrence's, C.H. review in The Tablet, 6 January 1990. p 14; C.H. Lawrence, ‘Origins and Development of Clerical Celibacy.’ in The Clergy Review, 1975. pp 138–146. Also the review by the Orthodox archbishop, L'Huillier, Peter in Sobornost, 12 (1990), pp 180182. More recently, however, a Catholic priest in Germany has produced a reexamination of the patristic texts and argues in favour of the thesis of Cochini and Cholij. He claims that there is convincing evidence for an obligation to continence on the part of married clergy long before the fourth-century papal decretals. See Heid, Stefan. Zölibat in der frühen Kirche. Die Anfänge einer Enthaltsamkeitspflicht für Kleriker in Ost und West (Paderborn 1997). I am also informed that Cardinal Alfons Stickler has published an important contribution to this discussion in The Case for Celibacy (San Francisco 1995). Unfortunately, I have not yet been able to obtain a copy of this book. But perhaps Cardinal Stickler's views on the subject can be seen in his 1986 Foreword to R. Cholij's book, where he writes: ‘In my opinion the works of both Fr. Christian Cochini S.J. and of Fr. Roman Cholij are to be considered the two definitive studies on celibacy of the clergy in the Christian Church.’ Cholij, R., Clerical Celibacy, p ix.

58 St Gregory Nazianzen's father was a bishop, Bishop Gregory the Elder of Nazianzen. St Gregory of Nyssa was also married: see Gryson, Roger, Les origines du célibat ecclésiastique (Gembloux 1970).For a lengthy list of bishops, priests and deacons who were married in the first seven centuries of the Church, both in the East and in the West, see Cochini, C., The Apostolic Origins of Priestly Celibacy, pp 84–134.

59 At the Council held at Ancyra, the capital of Galatia, around the year 314, canon 10 implies that those in major orders could not marry after ordination: ‘They who have been made deacons, declaring when they were ordained that they must marry, because they were not able to abide so, and who afterward have married, shall continue in the ministry, because it was conceded to them by the bishop. But if any were silent on this matter, undertaking at their ordination to abide as they were, and afterwards proceeded to marriage, these shall cease from the diaconate’:Percival, H. R. (editor), The Nicene and Posl-Nicene Fathers. Vol XIV: The Seven Ecumenical Councils of the Undivided Church (Edinburgh Michigan 1991) p 67. Very soon after this, between 314 and 325, a synod held at Neocaesarea in Pontus, declared in its first canon: ‘If a presbyter marry let him be removed from his order; but if he commit fornication or adultery, let him be altogether cast out [i.e. of communion] and put to penance.’ibid., p 79. Gratian has included this canon in the Decretum, D.28, c, but, following Isidore, Gratian has added ‘among the laity’ (inter laicos), which is not in the Greek text.

60 ‘It has seemed good absolutely to forbid the bishops, the priests, and the deacons, i.e. all the clerics in the service of the ministry, to have [sexual] relations with their wives and procreate children; should anyone do so, let him be excluded from the honor of the clergy’: see, Cochini, C.. The Apostolic Origins of Priestly Celibacy, p 159.Laeuchli, Samuel, Power and Sexuality: The Emergence of Canon Law at the Synod of Elvira (Philadelphia 1972).

61 It is the earliest decretal we have and it is modelled directly on imperial rescripts which provided rulings that were meant to establish legal precedents.

62 See the decretal letter, Directa in Patrologia Latina, vol 13, cols 1138a–1139b, quoted by Cochini, C., op. cit., p 9. On these decretals of Pope Siricius, see Callam, Daniel, ‘Clerical Continence in the Fourth Century: Three Papal Decretals’, Theological Studies 41 (1980), pp 350. What was stressed in these early decretals as a primary motive for clerical continence was ritual purity in preparation for celebrating the Eucharist. See Beaudette, Paul, ‘“In the World but not of It”Clerical Celibacy as a Symbol of the Medieval Church,’ in Medieval Purity and Piety. Essays on Medieval Clerical Celibacy and Religious Reform, edited by Frassetto, Michael (Garland Publishing, New York and London 1998) pp 2346.

63 Decretal letter Cum in unum, in Patrologia Latina, vol 13. 1160a–1161a, quoted by Cochini, C., op. cit., p 11.

64 Decretal letter. Dominus inter, attributed variously to Pope Siricius or to Innocent, Pope I(401–417). or to Pope Damasus (386–384). Patrologia Latina. vol 13. cols 1184a–1186a. See C. Cochini. op. cit. pp 14–15.

65 ‘Placuit in totum prohibere episcopis. presbyteris. diaconibus. ac subdiaconibus positis in ministerio abstinere se a conjugibus suis. et non generare filios. Quod quicumque fecerit. ab honore clericatus exterminetur.’ Concilium Elibertinum. canon 33 in Isidoris Mercatoris Decretalium Collectio. Patrologia Latina. vol 130. col 417.

66 See Brundage, James A.. Law, Sex, and Christian Society in Medieval Europe (Chicago 1987) pp 171172.

67 D.81.c.30:C.15 q. 8. c. 3

68 ‘Quidam clerici legitime non habentes conjugium. extranearum mulierum vel ancillarum suarum interdicta sibi consortia appetunt. ideo quae conjuncte taliter cum clericis sunt ab episcopo auferantur et venundentur. illis pro tempore religatis ad paenitentiam quos sua libidine infecerunt’. Isidori Mereatoris Decretalium Collectio. Fourth Council of Toledo (633). canon xlii in Patrologia Latina. vol 130, col 474.

69 ‘Cum multae super incontinentia ordinis clericorum hactenus emanaverint sententiae Patrum. et nullatenus ipsorum formari quiverit correctio morum. usque adeo sententiam judicantium protractavere commissa culparum, ut non tantum ferretur ultio in auctoribus scelerum. verum et in progenie damnatorum. Ideoque quilibet ab episcopo usque ad subdiaconum deinceps vel ex ancillae vel ex ingenuae detestando connubio in honore constituti filios procrearent. illi quidem ex quibus geniti probantur canonica censura damnentur. Proles autem aliena pollutione non solum haereditatem parentum nusquam accipiet. sed etiam in servitutem ejus ecclesiae. de cujus sacerdotis vel ministri ignominia nati sunt jure perenni manebunt.’ Isidori Mereatoris Decretalium Collectio. Concilium Nonum Toletamm 655). canon x. Patrologia Latina. vol 130. col 524. (in Gratian's Decretum. C. 15. q.8. can.3).

70 See Brundage, James A.. Law, Sex and Christian Society in Medieval Europe. (University of Chicago Press. Chicago and London 1987) pp 171172. Concilium Auracense (Orange), canon 22: Ut elerici conjugati, nisi continentiam profiteantur, diaconi non fiant. ‘Sedit praeterea ut deinceps non ordinentur diacones conjugati. nisi qui prius conversionis proposito confessi fuerint castitatem:’ canon 23: De his qui post aceeptum diaconatum incontinentes inveniuntur. ‘Si quis autem post acceptam benedictionem leviticam cum uxore suo incontinens invenitur. ab officio abjiciatur.’ Patrologia Latina, vol 130. col 393. (also can.24). Concilium Agathense: canons 9 and 10.

71 Canon 13 of the Council in Trullo.

72 Cholij, R., for example, in Clerical Celibacy, pp 196–197.

73 Percival, H. R. (editor). The Canons of the Holy and Altogether August Apostles. Canon 5, in The Nicene and Post-Nicene Fathers, vol XIV, The Seven Ecumenical Councils of the Undivided Church (Michigan 1991) p 594.

74 See, for example, Council of Gangra, canon 4; Council of Carthage, canons 3, 4, and 23; Dionysius, canon 3: Timothy, canons 5 and 13.

75 Codex lustiniams. edited by Kruger, P. (Berlin 1954) I, 3. 41, 2–4. 47; Novella VI, 1. p. 36–37 (535AD).

76 It is interesting to note how this canon 13 of Trullo has now been explicitly accepted by the Catholic Church as one of the sources for canon 373 in the Code of Canons for the Eastern Churches promulgated by the Pope in 1990: ‘Clerical celibacy chosen for the sake of the kingdom of heaven and so suited to the priesthood is to be greatly esteemed everywhere, as supported by the tradition of the whole Church; likewise the state of clerics joined in matrimony, as sanctioned by the praxis of the primitive Church and for centuries in the Eastern Churches is to be held in honour.’ The ancient Eastern sources that are given for this canon are: Apostolic Canons, canon 5; Carthage, canon 3: Quinisext. canons 3, 6, 13, 30: Cyril of Alexandria, canon 4.

77 Canon 1013 para 2 of the 1917 Code of Canon Law states that the essential properties of marriage are unity and indissolubility. The fontes listed from the first millennium for this canon are almost all from St Augustine, as cited by Gratian. See. for example. Concordia Discordantium Canonum, C.32, q.7. cc. 1, 27.

78 For example, canons 8 and 9 of the Council of Elvira (c.306); canon 10 of the Council of Arles (314); and canon 17 of the Council of Milevis in North Africa. Mansi, G.D.. Sacrorum Conciliorum Nova et Amplissima Collectio, vol IV, p 331; Patrologia Latina, vol 130. col 372.

79 Innocent I, Mansi, G. D., Sacrorum, Conciliorum Nova et Amplissima Collectio, vol III. p 1049. (Rousseau, ‘Divorce and Re-marriage: East and West,’ p 68); Patrologia Latina, vol 130. col 704–705.

80 See, for example, Hinschius, P., Decretales Pseudoisidorianae, pp 87–88; 265–266 and 340–343.

81 See Reynolds, Philip Lyndon. Marriage in the Western Church. The Christianization of MarriageDuring the Patristic and Early Medieval periods (Brill, E.J., New York 1994). especiallychapter VIII: ‘The Matthean Exception in the Fathers’. and Chapter IX: ‘The Matthean Exceptionand the Doctrine oflndissolubility’. (pp. 173240).Rousseau, Olivier, ‘Divorce and Remarriage:East and West’. in Concilium, vol 4, no. 3 (1967) pp.

82 ‘On the other hand, the Councils of Verberie in756 and Compiegne in 757 allow re- marriagein the case of incestuous adultery on the part of theguiltyhusband’. Rousseau, O., op. cit., p 64.

83 See. for example. C.32. q.7, cc. 1, 27;

84 ‘Nevertheless, in the official documents of the Roman Church of that period which concernthe Greeks, no mention is made of divorce. It is not mentioned in the letter of Innocent IV for the Greeks of Cyprus which nonetheless recommended many Latin usages, nor in the profession of faith imposed after the Council of Lyons of 1274 on the emperor Michael Palaeologus: the profession is content to state in a general manner that it is not permissible for husbands to have several wives at the same time or for wives to have several husbands. At the Council of Florence, when the question was proposed in the very last place by Pope Eugene IV, after the decree of unification had been signed, the Greeks answered that if they sometimes allowed divorce this was not without reason (ouk alogos)—we recognise Origen's formula herein—and the matter was not pursued any further’. Rousseau, op.cit., p 64. It should be remembered too thatTrent modified the first version of canon 7 of Session XXIV. which prohibited divorce, preciselybecause of the custom of the Greeks. In this way some sort of respect was being shown to anIcont.immemorial custom of the Greek Church. For a short but informed discussion of this question, see Fransen, Piet, ‘Divorce on the grounds of adultery in the Council of Trent (1563)’, Concilium. vol 5. no. 6. 05 1970, pp.89100. See also the well-documented discussion of the Tridentinecanon by Bressan, Luigi, ll Canone Tridentino sulDirorzioper Adulterio e iInterpretazione degli autori (Rome 1973). This was followed in 1976 by another fine study by Bressan, , ll Dirorzionelle Chie.se Orientali. Ricerca Storica sull‘Atteggiamento Cattolico (Bologna 1976).

85 The teaching of Christ was clearly contrary to divorce and re-marriage: Matthew 19:3–9‘What therefore God hath joined together, let no man put asunder … And I say to you: whoever divorces his wife, except for unchastity, and marries another, commits adultery’. See alsoMatthew 5:31–32.

86 Codex Iustiniamts, 1.1.5.

87 Noonan, John T.. ‘Novel 22’ in The Bond of Marriage, edited by Bassett, William W. (Universityof Notre Dame. 1968) p 87.

88 ‘The possibility of divorce remained an integral part of Byzantine civil legislation at all times.In the framework of the ‘symphony’ between Church and state, it was never challenged, a factwhich cannot be explained simply by reference to caesaropapism. The Byzantine Church never lacked saints who were ready to castigate imperial despotism, social injustice, and other evilscontrary to the Gospel. John Chrysostom (398–404), Theodore the Studite (+820), or PatriarchPolyeuktos (956–970) were able to challenge the power of the state without fear: none ofthem, however, protested against the legislation concerning divorce.Meyendorff, J., ByzantineTheology (New York 1983) p 197198. On the other hand, this assumption that the‘EasternChurch in the early centuries did not oppose the civil provision for divorce with the right of cont. re-marriage has been challenged by Crouzel, Henri. L'Église primitive face cm divorce cut cinquieme siecle (Paris 1971).This is a scholarly study of the Roman Catholic Church's teachingand practice with regard to marriage and divorce in the first five centuries. The author argues that there is very meagre evidence in those centuries of a tradition permitting re-marriageafter divorce during the lifetime of the first spouse. Crouzel has argued his case well and convincedmany that the evidence in the first fivecenturies for a tradition permitting re-marriageafter divorce during the lifetime of the first spouse, is so meagre as to be virtually negligee.However, he has not convinced everyone. Some have questioned his principlesofinterpretation when reading early patristic texts. See the review of his book by Sherlock, J. A. in Theological Studies. 33 (1972). pp 333–338.

89 The Novationists were a rigorist party in the early Church which disapproved of any concessionsto those who had compromised with paganism under persecution.

90 Tanner, N, Decrees of the Ecumenical Councils, vol I, p 10.

91 Reynolds, P. L.. Marriage in the Western Church. p 148, where Reynolds refers to the argumentsput forward by G Cereti in Divorzio, nuove nozze e penitenza nella Chiesa primitive(Bologna 1977) pp 270354.

92 Cereti, G. has re-stated his case more recently in ‘The Reconciliation of Remarried DivorceesAccording to Canon 8 of the Council of Nicaea’ in a festschrift presented to J. M. Huizing. lusSequitur Vitam. Law Follows Life, edited by Provost, J.H. and Waif, E. K. (Leuven UniversityPress 1991) pp 193207.It is true that, as already noted. Henri Crouzel has made a careful studyof the same conciliar and patristic texts on which Cereti bases his case, and has come to quite adifferent conclusion. However. Cereti has argued his case carefully and in a field in which thenumber of incontrovertible texts is very small. His position merits serious examination.

93 St Basil re-admitted to the Eucharist a man who had been divorced because of his wife's adultery and had remarried. St Basil Ep. 217. 77, Patrologia Graeca. vol 32, cols 804ff. Also Ep.188. 9 (PG vol 32. col. 677ff.: and Ep. 199. 21. (PG vol 32. col. 721). These canons are discussed in Kasper, W.. Theology of Christian Marriage. (London 1980) pp 5455.

94 For example, concerning marriage: ‘Thus the ever-increasing difference between the twoconceptions is visible: the Eastern tradition tending to relate everything to the mystery and the Scriptures (while necessarily interpreting Matthew 19:9 broadly), and the West on the contrary fixing its attention on another aspect and ultimately terminating in the consideration of the contractual element as the basis on which grace has come to be conferred’Rousseau, O., ‘Divorceand Re-marriage: East and West’ in Concilium, vol4, no. 3 (1967) p61.

95 See, for example, Distinclio 21, d. c. 1; Distinctio 22, c. 2; Distinctio 12, cc 1–2; Causa 25, q. 1, d. p. c. 16: ‘Sacrosancta Romana Ecclesia ius et auctoritatem sacris canonibus impertit, sed noneis alligatur’ (The most holy Roman Church gives law and authority to the canons, it is notbound by them). See. Congar, Y., L'Eglise de Saint Augustin, pp 145–147.Tierney, Brian, Foundationsof the Conciliar Theory. The Contribution of the Medieval Canonists from Gratian to the Great Schism (2nd enlarged edition, Brill, Leiden New York 1998) especially pp 2829.

96 Southern, R.W., Scholastic Humanism and the Unification of Europe. Vol I, Foundations(Blackwell 1995) p 305.

97 Ibid, p 291.

98 Ibid. p. 286.

99 Distinctio 32, c.lO, 11.

100 Distinctio 56, d.p.c. 13, where Gratian mentions that in earlier times there had been marriedclergy in the Latin Church and that this had been legitimate until it was prohibited, as it is still legimate in the Eastern Church (Cum ergo ex sacerdotibus nati in suminos Pontifices, supra Icguntur essepromoti, non sum intelligendi defornicatione, sed de legitimis coniugiis nati, que sacerdotibus ante prohibitionem ubique licita erant, et in orientali ecclesia usque hodie eis licereprobatur).

101 See Southern, R.W.. Scholastic Humanism and the Unification of Europe (Blackwells. Oxford 1995) especially Part Two. Chapter 9, pp 283318. for a comprehensive discussion of the importance of Gratian in the development of Roman centralization. Professor Anders Winthrop has recently published an important book on Gratian and his collection:Winroth, Anders. The Making of Gratian's Decretum (Cambridge University Press 2000).Winthrop has made the remarkablediscovery that there were in fact two editions of the Concordia Diseordantium Canonum, the first around the year 1141 and the second about fifteen or so years later. The first edition he discovered in four twelfth-century manuscripts and it is considerable shorter than the final version. Winthrop's book also contains an up-to-date account of Gratian studies: Winthrop, op.cit., pp 1–18.

102 On the different approaches to the theology of the Church, the diverse ecclesiologies. see Congar, Y, After Nine Hundred Years: The Background to the Schism between the Eastern andWestern Churches (New York. 1959);De Vries, W., S. J., Orient et Occident. Les structures ecclésiaes rues dans t'histoire des sept premiers conciles oecumeniques (Paris 1974).

103 The Coptic Nomokanon of Al - Safi Ibn al-‘Assal is an important example of medievalcanon law outside the Empire, a complete manual of law for the Jacobite community of Egypt. It provides information about the state of the Coptic Church in the middle of the thirteenth century. The sources for this collection include canons from the Council of Nicaea (325); canons from the regional councils: Ancyra, Neocaesarea, Gangria, Antioch, and Laodieaea, as well as the Pseudo-Apostolic canons of Hippolytus and the Didaskalia, and some canons from St Basil. It also provides Arabic translations of the ninth-century Byzantine Procheiros Nomos (Law Handbook or Law Ready to Hand) and the fifth-century compilation of Roman Law. called the Syro-Roman Lawbook.

104 An edition in Armenian was published by Chosrov Thorosian, Erevan, 1975. Professor Robert Thomson of Oxford University has recently published an English translation and commentary of this Nomokanon. Thomson, Robert W., The Lawcode [Datastanagirk] of Mxit'ar Goŝ (Rodopi, Amsterdam 2000). See Krikorian, Messrob K., ‘“Tus Graeco-Romanum” and Canon Rules in the Tradition of the Armenian Church’, in Incontro fra Canoni d'Oriente e d'Occidente, edited by Coppola, Raffaele (Bari 1994) vol I, pp165191.

105 Canon 5 of the Council of Nicaea, in Tanner, N., Decrees of the Ecumenical Councils, volI, p8.

106 Canon 19 of the Council of Chalcedon, in Tanner, N.. Decrees of the Ecumenical Councils.voll. p96.

107 The Council in Trullo. canon 8.

108 Canon 6 of the Second Council of Nicaea (787) in in Tanner, N.. Decrees of the EcumenicalCouncils, vol I. pp 143144. This long canon provides a good description of how the canonswere held in reverence in the early Church as ‘divine and life-giving laws of God’.

109 Gratian includes a number of these canons in the Decretum. but he gives them a new slant, maintaining that the authority to call and approve councils rests with the Holy See in Rome. See D. 17, d.a.c. 1. and D.I8, on provincial councils. A number of his canons here, of course, areforgeries from the Pseudo-Isidorian Decretals, and they show how the early approach had beenlargely superseded by a very centralised papal authority in Rome.

110 ‘Wherefore we teach and declare that, by divine ordinance, the Roman church possesses apre-eminence of ordinary power over every other church, and that this jurisdictional power of the Roman pontiff is both episcopal and immediate. Both clergy and faithful, of whatever rite and dignity, both singly and collectively, are bound to submit to this power by the duty of hierarchical subordination and true obedience, and this not only in matters concerning faith andmorals, but also in those which regard the discipline and government of the church throughoutthe world. In this way, by unity with the Roman pontiff in communion and in profession of the same faith, the church of Christ becomes one flock under one supreme shepherd. This is theteaching of the catholic truth, and no one can depart from it without endangering his faith and salvation’. In Tanner, N., Decrees of the Ecumenical Councils, vol II, pp 813814. This use ofterms like ‘ordinary power’ that is both ‘episcopal and immediate’ caused great difficulties afterthe Council and had to be carefully explained.

111 At this point one cannot but think about the recently promulgated Code of Canons for theEastern Churches, promulgated by the Roman Pontiff in 1990 for all the Eastern Catholic Churches in communion with Rome. This was not entirely an innovation, since it was bringingup to date the legislation that had been promulgated for the Eastern Catholic Churches by Pope Pius XII between 1949 and 1957, but long before its promulgation in October 1990 it was criticised by a number of the leaders of these Churches. They thought that the promulgation of a new code ought to be, not an act of the pope alone, but a collegial act of the pope with the patriarch (or major archbishop) and the synod of each Eastern Church. See Pospishil, V. J., Ex Occidente Lex (New Jersey 1979) pp 159 and 162). The proposal fell on deaf ears. The Code of Canons ofthe Eastern Churches does, in fact, implement a number of the conciliar directives concerning theEastern Churches. However, the new code has not succeeded fully in embodying the ecclesiologicalvision of the Church as a communion of sister Churches that the Second Vatican Councilput before us. For this reason it has been a disappointment for many Eastern Catholics.

112 This has been acknowledged by the present Pope in recent years: see Euntes in mundum, n.10, An Apostolic Letter of Pope John Paul II of 25 January 1988 on the occasion of the millennium of the conversion of Russia to Christianity. Acta Apostolkae Sedis, vol 80, Part 2(1988), p950.

113 ‘Quarrels about words and formulations’ was how Bar Hebraeus described the division betweenthe Churches in the thirteenth century. This view has received some confirmation in the recent agreements that have been signed by the Pope and a number of leaders of Eastern Churches. For example, the Common Declaration issued by Pope Paul VI and the Coptic Pope Shenoudalll in 1973, expressing a common faith in the mystery of the Incarnation, in the perfect humanity and divinity of Jesus. See Yarnold, E., They are in Earnest (St Paul Publications 1982) p 114. Similar joint christological declarations have been made by Pope John Paul II withthe Syrian Patriarch, Ignatius Zakka I, in June 1984, and with the Catholicos-Patriarch of the Church of the East, Mar Dinkha IV, in November 1994. This latter resolved the separation thathad been caused by the Council of Ephesus in 431. Referring to it. Pope John Paul II said: Thiswill settle-and definitively put an end to more than fifteen centuries of misunderstanding thatafflict our faith in Christ, true God and true man. born to the Virgin Mary by the Holy Spirit’(Osserratore Romano, 10 November 1994). These joint declarations show it is possible to havediversity of formulations even of essential doctrines within the unity of faith. This had beenstated clearly in 1964 at the Second Vatican Council in the Decree on Ecumenism, Vnitatis Redintegratio, n. 17: ‘What has just been said about legitimate variety must also be taken to apply to the differences in theological expression of doctrine. In the study of revelation east and west have followed different methods, and taken different steps, towards their understanding and confession of God's truth…In such cases, these various theological expressions are often to be considered complementary rather than conflicting’ Tanner, N, Decrees of the Ecumenical Councils, vol II, p 917.

114 Decree on Ecumenism, Unitatis Redintegratio, n.17.

115 ‘Consuetudo communitatis christianae, quatenus actuositati Spiritus Sancti in corpore ecclesialirespondet, vim iuris obtinere potest’. That canon law developed out of customs in the early Church is clearly shown in the sources given in the Eastern Code for this canon: canons 6 and 7 of the First Council of Nicaea; canon 2 of the First Council of Constantinople: canon 8 of the Council of Ephesus: canons 14–15 of the Second Council of Nicaea (787). as well as anumber of canons from the eastern Fathers.

116 Markus, R. A., Gregory the Great and his World (Cambridge 1997) p 73.

117 Gregory would have arrived in Constantinople just a year after the death of Patriarch JohnIII Scholastikos, whose Synagoge in 50 Titles is one of the earliest collections of eastern canon law that has come down to us. John Scholastikos had also gone to Constantinople around 550as the apocrisarius of the Patriarch of Antioch.

118 ‘Novit fraternitas tua Romanae ecclesiae consuetudinem in qua se meminit nutritam: valdeamabilem [earn] habeat. Sed mihi placet sive in Romana sive in Galliarum sive in qualibet ecclesia aliquid invenisti quod plus omnipotenti Deo possit placere sollicite eligat et in Anglorum ecclesia. quae adhuc ad fidem nova est, institutionem praecipuam quam de multis ecclesiis colligere potuit. infundat. Non enim pro locis res sed bonis rebus loca amanda sunt. Ex singulis ergo quibusque ecclesiis quae pia, quae religiosa. quae recta sunt eligat et haec quasi in vasculo collecta apud Anglorum mensam in consuetudinem depone’ This version of the text and the English translation is taken from an article on Pope Gregory's general approval of diversity in unity by Dom Paul Meyvaert, ‘Diversity within Unity, A Gregorian Theme’, Hevthrop Journal 4(1963). pp 141–162.

119 Dom Meyvaert, P.. op. cit., p. 146.

120 For a fuller discussion of this question, see de Vries, W.. ‘The Origins of the Eastern Patriarchates and Their Relationship to the Power of the Pope. Part I’, in One in Christ. 1966, pp 50–69.See also De Vries's magisterial work on the eastern patriarchates, Rom unddie Patriarchate des Ostensi (Freiburg 1963).

121 Dvornik, F. has argued that a sound basis for mutual understanding between the Eastern Churches and the Latin Church of the West would be a clearer understanding of the actual condition of the Church in the period from the fourth to the eleventh centuries.Dvornik, F.. Byzantium and the Roman Primacy (New York 1966).

* This is the text of the Lyndwood Lecture delivered in London on 27 October 2000.

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