Canon Law

Early collections

Medieval canon law and political thought

Canon law in modern religions

BIBLIOGRAPHY

The term “canon law” usually refers to the law of the Roman Catholic and Orthodox churches, although it is sometimes applied analogically to the law of other religious groups, particularly Islam. The word “canon” is derived from the Greek kαvώv, meaning a rule or measure (originally an architectural instrument), and it has been used in several senses. The canon of sacred Scripture is the body of those sacred writings that have received official approval as divinely inspired. The decrees of the church councils are also known as canons; a saint is canonized when he is placed on the official list or canon of the saints, and a member of a cathedral chapter in the Anglican and Roman Catholic churches is called a canon. (Originally the term applied to all priests on the official list of a bishop.)

Early collections

The body of law known as canon law developed out of the collections of canons of the early church councils. The first such collections were made in the Eastern church beginning with the Council of Nicea (a.d. 325). A collection of Apostolic canons supposedly dating from the time of the apostles but actually much later in origin (fourth century) had great authority in the East. The collection made by the Council of Constantinople, In Trullo (a.d. 691), and 22 canons from the Council of Nicea that were added to it in a.d. 787 form the basic texts for the canon law of the Greek and Russian Orthodox churches.

In the West, however, the collections made by Dionysius Exiguus around a.d. 500 were the first important texts of canon law. They included the canons of the ecumenical councils held in the East (omitting one adopted at Chalcedon that equated the patriarch of Constantinople and the pope), 50 of the Apostolic canons, the canons of the councils held by the north African church, and 39 papal letters or decretals containing interpretations of doctrine made by popes of the fourth and fifth centuries. Another collection, the Hispana, made in Spain in the seventh century, also included the decrees of councils held in Gaul and Spain as well as many more papal decretals. In the ninth century, the pseudo-Isidorean or false decretals, supposed to have been collected by St. Isidore of Seville (560−636), drew on this collection and added apocryphal letters said to have been written by the popes in the first three centuries. Subsequent collections in the West in the period between the ninth and twelfth centuries began to be organized on an analytical rather than chronological basis, and the collection of Yves de Chartres made in 1095 gave rules for the interpretation of conflicting canons.

Around 1240 a new collection was published that was a systematic attempt to use Yves’s method to analyze and harmonize the conflicting elements in the conciliar decrees, papal decretals, and writings of the church fathers that had appeared in previous collections. Attributed to Gratian, a Bolognese monk, its original title was the Concordantia discordantium canonum (“Concordance of Discordant Canons”), but it is usually referred to as the Decretum (“Decree”). While it was never officially endorsed by the papacy, it formed the basis for the teaching and study of canon law in the West for many centuries and was included in the corpus of canon law along with the later official collections, the decretals of Gregory ix (1234), the Liber sextus (“Sext”) of Boniface viii (1298), and the Clementinae of Clement v (1317). Two further unofficial collections complete the medieval texts—the Extravagantes of John xxII and the Extravagantes communes of the later popes of the fourteenth and fifteenth centuries. Together these collections form the body of law that governed the Roman Catholic church down to the twentieth century, when Pope Benedict xv issued a formal code of canon law in 1917.

Medieval canon law and political thought

The writings of the canon lawyers in the three centuries that followed the publication of the Decretum are of special interest to the social scientist, particularly to the student of political theory. In the thirteenth century, canon law became the object of specialized study in the new universities of western Europe, and the questions that were discussed by the “decretists,” as the commentators on the Decretum were known, and the “decretalists,” or commentators on the later collections of papal decretal letters, included many of the fundamental problems of political thought and institutions. Since the ablest intellects were attracted to the church as a career, and the church’s legal system developed rapidly in this period, it is not surprising that the solutions that they gave to these problems have had a lasting influence on Western political thought. The “civilians,” or commentators on the civil, i.e., Roman, law were also active in this period, and the two groups influenced each other (it is still possible today in Europe to receive a doctorate in “both laws”—the degree of j.u.d., juris utriusque doctor), but the important writing on most questions was done by the church lawyers in the glosses they wrote on the texts of the Decretum and the decretals, and in their summae, or general treatises, on the canon law.

Papal sovereignty

In the hands of the canon lawyers, the claims of the papacy to supremacy over the Christian church were steadily expanded by judicious selection of materials and by interpretation of the texts in the glosses. For example, where an earlier text referred to the selection of a bishop by the prince or the cathedral chapter, a canonist commentator inserted after the reference to the prince the words “of the church, that is, the pope.” In another instance, where Pope Innocent iii (1198−1216) had claimed the right to intervene in temporal matters casualiter, “incidentally,” the canonist who became Pope Innocent iv (1243−1254) added the word saltem, “at least,” thereby claiming a much broader papal jurisdiction. Probably the best known of the canonist attempts to buttress the claims of the papacy was the appeal to the spurious Donation of Constantine—the alleged transfer of the western empire by Constantine to Pope Sylvester in gratitude for his cure from leprosy. The account of the donation was included among the forgeries in the pseudoIsidorean decretals, and although it was not mentioned by Gratian, it was inserted as a postscript to a section of the Decretum by his pupil, Paucapalea. Attempts were also made to claim jurisdiction for the burgeoning system of ecclesiastical courts not only over doctrinal matters but also over wills, marriages, widows, orphans, usury, contracts, and treaties (on the grounds that an oath was involved). The furthest extensions of the claim for papal legal supremacy included in the canon law were Innocent iv’s claim to be ordinary judge (judex ordinarius) over all mankind and the bull Unam sanctam of Boniface viii, which claimed both the “material and spiritual swords” for the pope. Some decretalist commentators, however, went still further and claimed for the pope the right to grant dispensations from the requirements of the natural law (Ullmann 1949, chapter 3).

Recent research (see especially Tierney 1955) has compelled a revision of the earlier view of the canonists as mere apologists for the papacy. Gratian had included in the Decretum the statement by Pope Gelasius (492−496) that there are two powers by which the world is governed, and it strained the logical powers of the canonists to reduce this dualism to unity—although some were able to do so. In the Decretum too was the specific statement (distinction 40, chapter 6) that the pope was subject to judgment by the church “if he is found to have departed from the faith.” The increasing legalization of relationships that had assisted papal centralization and expansion also resulted in a more precise analysis of the relations of the pope and other bodies within the church and led to an exploration of the cases in which the church could assert control over an errant pope. Thus, although some canonists identified the pope and the church so completely that it was impossible for the church to act against him, the analysis by the decretalists of the relations of the head (rector) and members of an ecclesiastical corporation (universitas) paved the way for the claim by later conciliarist writers with a canonist background (e.g., John of Paris, Henry of Langenstein, Franciscus Zabarella, and Nicholas of Cusa) that the church as a whole had a corporate right to act against its head in certain cases.

The development of corporation theory was recognized in the nineteenth century by Otto von Gierke as a significant contribution of the medieval canonists to political and legal thought, although Gierke’s theories about the real personality of corporate groups led him to criticize their views as inadequate. In a statement that was to have ramifications for American constitutional law (the Slaughterhouse Cases), Innocent iv described a corporation as a fictitious person (persona ficta) and recognized that it could be represented in legal action. The thirteenth-century and fourteenth-century canonists discussed how the corporation could act and thereby became involved in problems of consent, representation, and election.

Representation

A century earlier, Gratian had stated that the prelate was the representative of his church, but this representation was considered a personal one rather than the result of any corporate act. However, by the thirteenth century the popes were calling on corporate groups in the church to elect representatives to such meetings as the Fourth Lateran Council in 1215, with full powers to bind those who had elected them. The exercise of this right to elect representatives by ecclesiastical corporations in turn influenced theories of the representation of corporate communities in the emerging parliamentary institutions in England, France, and Spain. The interaction of canonist and secular law was facilitated by the fact that those engaged in administration (the clerks) were at least in minor orders (and therefore clerics). Ernest Barker (1913) has tried to develop a more direct relationship between the theory and practice of representation in the Dominican order and the development of the English parliament, noting especially the action of Simon de Montfort, a friend and possible pupil of the Dominicans, who called on the towns to send representatives to the parliament of 1265. This theory has been criticized by historians, but it is not necessary to be as specific as this in tracing the influence of canonical thought, since there was and had been a general borrowing of ecclesiastical concepts and practices both in England and on the Continent for at least a century. (For further details, see the essays collected in Post 1964.)

Consent

A similar development can be observed in canonical theories of consent to corporate action. Particularly on questions of the disposition of ecclesiastical property, the canonists spelled out the cases in which the consent of the cathedral or monastic chapter was necessary to actions by the bishop or abbot, the rector of the corporation. They distinguished between cases involving the corporate group as a whole, for which consent was required, and those involving the head of the corporation alone, for which he was required only to seek counsel. In this connection, the discussion of the precept “What touches all, should be approved by all” was of great importance for the history of democratic thought. Originally found as a Roman legal principle governing the rights of guardians and of those who shared a common source of water, it was given a broader extension by the canonists in their attempts to define the rights of the members of a corporate group, and in 1298 it was incorporated as one of the rules for the interpretation of the canon law in the Liber sextus of Boniface VIII. It was also cited by the Italian city-states in the thirteenth century to assert a right to participate in legislation, and its most famous use was by Edward i in the summons to the Model Parliament in England in 1295. (It should be noted that Edward would not have recognized a right to withhold consent, only to haggle about terms.) The conciliar theorists of the fourteenth and fifteenth centuries appealed to the maxim to assert a right of consent by the council to ecclesiastical legislation. The commentators on Gratian’s Decretum also discussed popular consent to legislation when they glossed distinction 4, chapter 3 of the Decretum, which states that “laws are confirmed when they are approved by the custom of the people using them.”

Elections

The canonists were obliged to discuss electoral procedures, since many of the church officers, including the pope, were chosen by election. While it was recognized that elections could be unanimous, acclamation following divine inspiration, the normal method was to take a vote (per scrutinium). However, a simple majority did not suffice, for the maior pars also had to be sanior (sounder), a requirement originally contained in the Benedictine rule and extended to all episcopal elections by the Fourth Lateran Council in 1215. In the mid-thirteenth century, Pope Gregory X decided that a vote in which the prevailing side was twice as large as those opposed—a two-thirds majority—could be assumed to fulfill both the requirements of numbers and merit. This decision was incorporated in the Liber sextus (C. 9, I, 6) in 1298 and extended to episcopal elections a requirement that had already been applied to the election of the pope in the twelfth century (1179). Subsequently, the two-thirds requirement found its way into the proceedings of many deliberative bodies, but its origin seems to be the canonistic requirement of approval by the maior et sanior pars.

Reason of state

The canon lawyers also helped to develop the modern conception of reason of state. The term ratio status was, of course, Roman in origin, as were many of the legal and political concepts of the canonists. The status of the church and the “reason of the utility of the church” were often appealed to, both to limit the pope when he was conceived to be acting against the interest of the church and to extend his power in cases of “necessity,” when the requirements of the church demanded it. Thus the pope could give dispensations from church law (although not from articles of faith) when “necessity” required it, but he could never act against the status of the church. Secular rulers also could take action on the basis of necessity, especially in waging just wars in which the reason of the matter (ratio rei) made it necessary to fight for the defense of the fatherland. In such cases, the canonists also recognized that the church had to contribute taxes to the common defense.

Natural law and equity

The ideas of natural law and of jus gentium, or the law of the peoples, contained in the opening passages of Justinian’s Institutes were reflected in the canonist discussions. The canonists tended to reject Ulpian’s definition of natural law as what nature has taught all animals and to confine it specifically to man. However, the fact that at the beginning of the Decretum Gratian defined natural law as that which is contained in the Mosaic Law and the Gospels created some confusion, and the natural and divine law are not as carefully distinguished in canonist writings as they are by St. Thomas Aquinas in his discussion in the Summa theologica (2, 1, question 91). The canonists also borrowed the Roman conception of aequitas in the interpretation of the law, and this became an important influence on English law, when, beginning in the fourteenth century, it became the guiding principle of the court of the lord chancellor, usually a clergyman, whose decisions were based on equity rather than on the common law.

Authority and legitimacy

Although all authority was considered to be derived ultimately from God, the canon lawyers adopted the Roman law theory that the authority of the emperor was derived from an original transfer by the people. Even before the introduction of Aristotle’s Politics to western Europe, the canonists accepted government as a natural institution and recognized the legitimacy of infidel rulers. (See the documentation in Tierney 1964, chapters 3 and 6; and Post 1964, pp. 521−535.) However, they were still concerned with justifying papal intervention, and they therefore argued that papal excommunication made it necessary for the people to withdraw from their ruler and that the pope alone, as vicar of Christ, had full power over all men, including infidel rulers.

Legislation

When so much legislation was being made by the pope, it is easy to understand why the canon lawyers were also the first in the medieval period to recognize the role of lawmaking in government. As early as the Decretum the pope’s right to make new laws was clearly stated, and in 1163 Pope Alexander III stated that “new ills demand the discovery of new medicines.” The theory that law was “found, not made” in the Middle Ages reflects neither papal practice nor the canon lawyers’ understanding of its meaning.

The same thing can be said about the medieval myth of a universal empire. In the same decretal in which he asserted the right to intervene “incidentally” in temporal affairs, Innocent in observed that “the king [of France] recognizes no superior in temporal affairs” (Per venerabilem 1202). This text was included in the decretals of Gregory ix and gave the decretalists an opportunity to comment on the claims of the European kingdoms to be independent of the jurisdiction of the Holy Roman Empire.

The theories of the clerical legal writers in the golden age of canon law, from the twelfth to the beginning of the fifteenth century, profoundly influenced the political thought of the West. Their discussions of papal sovereignty and the rights of the church, of election, representation, and consent, of the state, nature, and law, influenced the theory and practice of secular government and developed and refined many of the most important conceptions of Roman law.

Canon law in modern religions

Roman Catholicism

Canon law in the Catholic church in recent years has aroused less interest on the part of social scientists. In addition to the collections that formed the Corpus juris canonici until its codification in this century, church law also included papal laws or constitutions, the authoritative opinions of papal congregations, and the decrees of the Council of Trent and the First Vatican Council. Since 1918, this legislation has been superseded by the code of canon law, although the decrees of the Second Vatican Council should certainly be included in any listing of the basic law of the church, along with papal decrees and official definitions of dogma after 1918, such as that on the Assumption of the Blessed Virgin in 1950. The apostolic constitution of Vatican ii, De ecclesia, marks a reversal of the general process over the last millennium of centralization of authority and explicitly associates the bishops with the pope in the government of the church (the principle of collegiality), affirming that this right belongs to the bishops by virtue of their succession to the “college of the apostles” (and not derivatively from the pope).

Although the code of canon law has reorganized and systematized the law of the Roman Catholic church, it maintains continuity with the earlier legal texts. (Gratian’s Decretum alone is cited 8,400 times.) Like the earlier texts it is concerned with the internal government of the church, the qualifications for priests and members of the hierarchy, the administration of the sacraments, and the maintenance of a system of ecclesiastical justice. The sanctions at its disposal include excommunication—cutting off the violator of the law from the corporate life of the church, especially from participation in the sacraments; suspension—prohibition of a church officer from exercising his office; and interdict—the cessation of worship and the administration of the sacraments in a given geographical area. A system of church courts administers the code, culminating in the judicial bodies of the sacred congregations, especially the Sacred Roman Rota in Rome. The legalistic emphasis in much of Roman Catholic theology and moral teaching was much criticized at the Second Vatican Council; an attempt is being made to reduce the influence of the legal approach in these areas, but in a hierarchical church with a legal tradition of many centuries, it is evident that canon law will continue to play a major role.

Protestantism

Canon law does not have a significant position in the Protestant churches; in fact, the excessive legalization of the church was one of the abuses against which the reformers reacted. In a symbolic act to demonstrate this, Luther burned the Corpus juris canonici in front of the church at Wittenberg, denouncing the canon law as “heretical, anti-Christian, and unnatural.” However, all Protestant denominations have basic creeds or statements of faith that might be compared to the dogmatic canons of the church councils, and most of them have constitutions or bylaws that set forth the organization of local, regional, or national groupings variously called synods, jurisdictions, conferences, assemblies, or conventions.

Unlike the Roman Catholic example, the Protestant governing bodies invariably include lay representatives. For those denominations, such as the Baptists or Congregationalists, in which the basic unit of church organization is the local congregation, a highly developed system of church law is seen as an infringement of the autonomy of the individual congregation. Some central group is necessary, however, for such activities as the organization of the foreign missions, but in theory the local congregation is the final authority. For the Presbyterians, the presbyteries, the synods, and the General Assembly are higher bodies with judicial power, and the way in which their judicial proceedings are to be conducted in the Presbyterian church in the United States is prescribed in The Book of Discipline, first adopted in 1788 but often revised and amended since. The Methodist church has its Doctrines and Discipline, which has a section on judicial administration that specifies procedures for the trial of bishops and preachers and establishes a judicial commission to be elected by the quadrennial General Conference. The Episcopal church in the United States is closer to the Roman Catholic system both in terminology and substance. Its Constitution and Canons can be amended by a triennial General Convention composed of a House of Bishops and a House of Deputies, the latter including both clergy and laymen.

In the case of the Church of England, there is, in theory, a continuity with medieval canon law. However, by the Act of Submission of 1532, the English clergy agreed not to make any new canons without royal permission and to authorize a commission to reorganize the existing church law. In 1604, 141 new canons were drawn up and approved by the church convocations and the king. Other efforts at reform, however, ended in failure. In the intervening centuries most of the medieval canon law has been ignored, and Parliament has steadily reduced the jurisdiction of the church courts, successively abolishing the benefit of clergy (the right of clergymen to be tried in church courts), the practice of tithing, and control by church courts over wills, marriages, and the affairs of the laity. Since 1919, the assembly of the Church of England, made up of bishops, clergy, and laity, has acquired some autonomy in legislating for the church, but all major decisions must nevertheless be approved by Parliament. [SeeChristianity.]

Judaism

In Judaism, the ceremonial and legal precepts of the Bible, particularly those contained in the Pentateuch or Torah, were also developed and interpreted by the great rabbis shortly before, and for several centuries after, the beginning of the Christian era. At first these interpretations were transmitted orally; only later were they committed to writing in the Talmud (teaching). The Talmud is divided into two sections: the Mishnah, a collection of decisions on the interpretation of the laws contained in the Torah, and the Gemara, which is a later commentary on the contents of the Mishnah. Since there is no central legislative authority in Judaism, the Talmud should be compared with the canonist commentaries rather than with the canon law itself. For orthodox Jews, it has great authority, but the modern reform movement has tended to give the Talmud much less attention. [SeeJudaism.]

In the modern state of Israel, canon law plays an important and controversial role. The conservative religious parties are committed to the establishment of Jewish religious law as the sole law of the state. Their opposition has been one of the principal reasons that Israel has not adopted a written constitution, and they have been responsible for the application of several religious laws. For example, only kosher food may be imported into Israel; Jewish dietary laws are observed in the army; the Sabbath is officially recognized, and neither the railroads nor shipping operates on that day. Most important, rabbinical courts have sole jurisdiction over all Jews in matters of marriage, divorce, alimony, and wills, and the determination of a person’s status as a Jew is made by these courts on the basis of religious law.

Some of these practices have been criticized by the secular parties, particularly the application of a marriage law that clearly discriminates against women. While there have been proposals to convene the Sanhedrin to modernize the law, there is some doubt as to how this can be done. In addition to the archaic character of some of its provisions, the fact that the religious parties are in a minority in Israel makes it unlikely that they will succeed in extending greatly the jurisdiction of religious law.

Islam

The Islamic legal system, as contained in the Koran and its subsequent interpretations, is not called canon law, but it fulfills many of the same functions and has undergone a similar evolution. The Koran contains some six hundred verses with ethical content and eighty on legal topics. These are considered to be the basis of Islamic law and to have eternal and immutable validity. Polygamy is permitted, and divorce is possible by simple dismissal by the husband and a prescribed waiting period. Drinking of wine is forbidden, and games of chance are discouraged.

Severe penalties, including death by stoning and cutting off a hand or foot, are laid down for sexual offenses, theft, and apostasy. A fast is commanded in the month of Ramadan that is so strict that nothing may pass the lips between sunrise and sunset. A religious tax, the zakat, is imposed on the faithful, and they are commanded to “obey God, his apostle, and the established authorities” (Sura 14, 59, 83).

During the three centuries after the death of Muhammad, the Islamic conquests spread the knowledge of the Shariyah (way) of Allah over the Middle East and north Africa and into Spain. Legal specialists commented upon the commands and prohibitions contained in the Koran, and the possible ethical and legal implications of cases from the life of the Prophet. By about a.d. 900 all essential questions of interpretation had been settled, and four schools of interpreters had emerged with varying emphases on each of the four sources of legal interpretation—the literal Koran, tradition, the agreement of the people, and analogical reasoning.

The ulama, or legal scholars, authorized Muslim rulers to make changes in the law in cases of necessity, but in reality two systems of law emerged: one, public and criminal law, under the control of the ruler and based on custom and his decrees; and the other, private and religious law, the object of study by ulama, who were roughly equivalent to the canon lawyers in the West but even more important, since there was no priesthood. The latter system was chiefly concerned with regulating family life, inheritance, and religious ritual in accordance with the Koran as interpreted by the great legal schools. The judges, or kadis, of the Islamic courts that applied this law were drawn from the ulama, although the ruler retained ultimate control and the right of review of their decisions.

From the tenth to the twentieth century, Islamic law underwent no significant development, and the ulama relied on the jurisprudence developed in the first three centuries of Islam. In the twentieth century, with the emergence of modern Islamic states in the Middle East and north Africa, an effort is being made to modernize its provisions, but this is often opposed by the traditionalist ulama. However, the Koranic rules on inheritance have been modified by the governments of Pakistan, Syria, and Iraq, and in Tunisia an attempt is being made to change many of the provisions of Islamic law by appealing to principles of interpretation that would lead to the abandonment of polygamy and of the fast of Ramadan and bring about a stricter legal regulation of divorce. Another alternative is to reject the whole system of Islamic law as Atatürk did in Turkey. More commonly, synthesis and adaptation of Islamic and Western law are being attempted, and such institutions as Al Azhar University in Cairo continue to train students in Islamic law with the support of the modernizing Islamic states in the Middle East and north Africa. [SeeIslam.]

A common element of all canon law systems is their literalism—the insistence on the observance of the letter of the law combined with an elaborate exegesis to determine its exact meaning. This can be understood if one recalls that the original texts that are being interpreted are usually considered to be divinely inspired. Yet at the same time, under the guise of interpreting the law, the commentators have often developed and changed its meaning. The canon lawyers have profoundly influenced the life, culture, and politics of their societies—at least in cases, as in medieval Europe and the Islamic world, where those societies are overwhelmingly of a single religious persuasion. In the pluralistic world of the West, canon law continues to exert an influence on the clergymen and adherents of the religious groups in which it plays an important role.

Paul E. Sigmund

[Relevant material may be found inNatural Law; Religion; and in the biographies ofAquinas; Gierke.]

BIBLIOGRAPHY

Barker, Ernest 1913 The Dominican Order and Convocation: A Study of the Growth of Representation in the Church During the Thirteenth Century. Oxford: Clarendon.

Bouscaren, Timothy L.; and Ellis, Adam C. (1946) 1951 Canon Law: A Text and Commentary. 2d rev. ed. Milwaukee: Bruce.

Carlyle, Robert W.; and Carlyle, A. J. 1903–1936 A History of Medieval Political Theory in the West. 6 vols. Edinburgh and London: Blackwood. → See especially Volume 2, The Political Theory of the Roman Lawyers and the Canonists, From the Tenth Century to the Thirteenth Century and Volume 5, The Political Theory of the Thirteenth Century.

Catholic Church, corpus juris canonici (1879−1881) 1959 Corpus juris canonici. 2d ed., 2 vols. Edited with critical annotations by Emil Friedberg. Graz (Austria): Akademische Druck & Verlags-anstalt.

Cicognani, Amleto Giovanni (1925) 1934 Canon Law. Philadelphia: Dolphin. → First published as lus canonicum.

Coulson, Noel J. 1964 A History of Islamic Law. Edinburgh Univ. Press.

Feine, Hans E. A. 1950 Kirchliche Rechtsgeschichte auf der Grundlage des Kirchenrechts von Ulrich Stutz. Volume 1: Die katholische Kirche. Weimar (Germany): Böhlaus.

Lewis, Ewart (editor) 1954 Medieval Political Ideas. 2 vols. New York: Knopf. → See especially Volume 1.

Maitland, Frederic W. 1898 Roman Canon Law in the Church of England. London: Methuen.

Mortimer, Robert C. 1953 Western Canon Law. Berkeley: Univ. of California Press.

Post, Gaines 1964 Studies in Medieval Legal Thought: Public Law and the State, 1100–1322. Princeton Univ. Press.

Rackman, Emanuel 1955 Israel’s Emerging Constitution: 1948–1951. New York: Columbia Univ. Press.

Schacht, Joseph 1964 An Introduction to Islamic Law. Oxford: Clarendon.

Tierney, Brian 1955 Foundations of the Conciliar Theory: The Contributions of the Medieval Canonists From Gratian to the Great Schism. Cambridge Univ. Press.

Tierney, Brian 1964 The Crisis of Church and State 1050−1300, With Selected Documents. Englewood Cliffs, N.J.: Prentice-Hall. → See especially “The Age of the Lawyers,” pages 97−157.

Ullmann, Walter 1949 Medieval Papalism: The Political Theories of the Medieval Canonists. London: Methuen.

CANON LAW

The basic elements of canon law were the Decretum (c. 1140) and the Decretales (1234). The Decretum (The concordance of discordant canons), compiled by a monk named Gratian, brought together materials related to the law and the administration of the church from a wide variety of sources in a dialectic fashion, in order to create a uniform body of law for the universal church. The Decretales (The Gregorian decretals) consisted of approximately two thousand decretal letters, judicial decisions, that various popes issued between the mid-twelfth and the early thirteenth century. Eventually several smaller collections were added as well: the Liber sextus (The sixth book of decretals; 1298); the Constitutiones Clementinae (The Clementine constitutions; 1317), and the Extravagantes a Johanne Papa XXII (Decretal letters of Pope John XXII; 1325). The last brief collection was the Extravagantes communes compiled at the end of the fifteenth century.

In addition to texts in the Corpus iuris canonici, canon law also contained commentaries based on glossing the texts. Initially brief marginal comments explaining unusual words and phrases and referring the reader to related materials elsewhere, the glosses grew longer and more detailed. By the mid-thirteenth century there existed a standard commentary, a Glossa ordinaria, on the Decretum and one on the Decretales. These provided a kind of basic textbook based on the writings of a number of early canonists. Subsequently, many canonists wrote longer commentaries, not simply defining obscure terms and citing related materials but writing at length on substantive issues raised in the texts. Some of these commentaries contained in effect brief legal treatises on points of law and even political theory. The most extensive of these commentaries was that of Johannes Andreae (c. 1270–1348).

The period 1140–1378 was the golden age of canon law, the period when the law was fully formed and produced its greatest thinkers. Scholars judge the post-1378 period in the history of canon law as sterile, an era when commentators repeated thoughts of their predecessors without adding significantly to the law. Part of the reason for this division was that after 1325, papal judgment letters, decretals, were replaced as the basis of the law by decisions of the other papal courts, especially that known as the Rota. Nevertheless, canonists continued to produce extensive commentaries on the Decretales, often running to several volumes, that have received little scholarly attention although there is evidence that they deserve more extensive analysis. John F. McGovern has argued that many early modern economic concepts that Max Weber and others associated with the Protestant Reformation had in fact existed in the works of fifteenth-century Italian canonists.

During the sixteenth and seventeenth centuries, the Protestant Reformation and the Catholic response to it had a significant effect on the development of canon law. The major effect of the Reformation was that canon law was no longer the recognized law of Christian Europe. Now only Catholic countries recognized canon law, and even in those countries agreements between Catholic rulers and the papacy granted wide powers to the rulers in return for supporting the papacy, agreements that restricted the jurisdiction of the law. Such agreements, concordats, effectively limited the role of the papacy and therefore of the canon law within Catholic kingdoms. The agreements often required the papacy to seek royal permission before circulating statements on ecclesiastical law and doctrine. The climax of this development came with the Peace of Westphalia (1648), which ended the religious wars in Germany. The pope was not invited to send a representative to the negotiations that led to the peace, and Pope Innocent X (1644–1655) condemned the treaty but to no avail. This marked the end of the role of the pope and of canon law in the international relations of Europe.

Within the Catholic community, there were important developments regarding canon law. In response to calls for codifying the canon law to bring all of the disparate materials of the law into a coherent body of law, Pope Pius V (1566–1572), taking advantage of Renaissance humanist scholarship, created a commission composed of cardinals and scholars with a mandate to examine the various manuscript copies of the materials of canon law, to correct errors, and to excise materials that had been added to the original texts. The result was the Corpus iuris canonici (Body of canon law), the official law of the Roman Catholic Church until 1918.

Another source of development in canon law in the sixteenth century was the Council of Trent (1545–1563), which generated a series of canons designed to respond to issues that the Protestant reformers had raised. Overall, the canons and decrees of Trent reinforced the institutional structure of the church, the sacramental system, and the power of the papacy, seeing the reform of the existing church structure as central and rejecting the Protestant argument that the entire ecclesiastical structure, including the canon law, had to be eliminated.

From the perspective of Christian daily life, the most important of the canons of Trent was Tametsi (1563) dealing with marriage law. This decree restated the Catholic position that marriage was a sacrament and subject to ecclesiastical regulation, in opposition to the Protestant view that marriage was fundamentally a civil matter. Tametsi required parental consent, witnesses, formal recording of the marriage, and a blessing by a priest. This ended the older practice of secret marriage entered into by two persons without witnesses, a situation that caused a great deal of confusion for the ecclesiastical courts. Finally, Tametsi forbade secular rulers from interfering in any way with the freedom of their subjects to marry as they wished, thus stressing the right of the individual to enter a marriage without compulsion, a right protected by the requirement that the marriage ceremony be celebrated publicly and in the presence of witnesses.

Martin Luther (1483–1546) famously illustrated the Protestant opinion about canon law when he publicly burned volumes of the law along with other materials that he saw as corrupting the Christian faith by stressing the letter rather than the spirit of Christianity. Protestants rejected the Catholic sacramental system and the entire clerical structure headed by the pope so that it was possible to reject canon law as well. Even those Protestant countries that did retain some elements of canon law rejected any papal role in its functioning.

It was not only the Protestant Reformation that affected the role of canon law in European society in the early modern era. As modern states began to emerge, secular governments also began to take responsibility for marriage and family law, for cases involving wills and probate, and other matters that had previously been within the jurisdiction of the church and canon law. The canon law connected with these activities became the basis of secular law in these areas even in Protestant countries. As a result, one of the most important areas of scholarly research in modern times has concerned the appropriation of canon law by secular lawyers and political theorists in the early modern world. This scholarship has focused attention on three aspects of the development of canon law in the early modern era: the conciliar movement, canon law in the expansion of Europe overseas, and marriage law. In each of these areas, the work of the canonists contributed to the shaping of modern political and legal concepts.

The conciliar movement, a fifteenth-century movement to reform the institutional structure of the Catholic Church, played an important role in subsequent discussion of representative government, because the canonists had wrestled with problems associated with the governance of large communities, the relation of the ruler, that is, the pope, to a representative institution, the council, and the nature of representation within a political community, issues that in the seventeenth century lay at the heart of political debate throughout Europe. Careful analysis of early modern political and legal texts has uncovered not only concepts developed by the canon lawyers but the language of the canonists as well.

A related concept that developed from the debates of the canon lawyers was the notion of the ruler as sovereign and then the application of that concept to the emerging nation-state, making the state answerable to no outside authority. This had emerged in the canonistic tradition as the canonists discussed the powers of the pope and the emperor. The canonists had rejected imperial claims to jurisdiction over all other Christian rulers, arguing instead that Christian kings possessed within their own kingdoms the power identified with the imperial office. Subsequent writers, such as Jean Bodin (1529–1596), whose Six Books of the Republic is usually identified as the initial modern work on the concept of sovereignty, drew heavily on the canonistic tradition in his work.

Finally, in spite of Luther's burning of volumes of the canon law, Protestant churches also employed at least some elements of the canon law tradition. The Church of England was perhaps the most notable example of continued use of the canon law and church courts in a variety of matters, but as recent scholarship has indicated, Lutherans also used elements of canon law. Elements of the medieval canon law can also be found in the major works of John Calvin, whose Institutes and Ecclesiastical Ordinances reflect a highly legal conception of church structure, a conception rooted in the writings of the thirteenth-century canonists.

See also Calvin, John ; Catholicism ; Church of England ; Luther, Martin ; Papacy and Papal States ; Reformation, Protestant ; Trent, Council of .

BIBLIOGRAPHY

Primary Source

Canons and Decrees of the Council of Trent. Original text with English translation by H. J. Schroeder. St. Louis and London, 1941.

Secondary Sources

Bernhard, Jean, Charles Lefebvre, and Francis Rapp. L'époque de la réforme et du concile de Trente. Vol. 14 of Histoire du droit et des instituions de l'église en Occident. Paris, 1989.

Brundage, James. Medieval Canon Law. London and New York, 1995.

Helmholz, R. H. Roman Canon Law in Reformation England. Cambridge, U.K., and New York, 1990.

McGovern, John F. "The Rise of New Economic Attitudes in Canon and Civil Law, A.D. 1200–1550." The Jurist 32 (1972): 39–50.

Ourliac, Paul, and Henri Gilles. La période post-classique (1378–1500). Vol. 13 of Histoire du droit et des institutions de l'église en Occident. Paris, 1971.

Pennington, Kenneth. The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition. Berkeley, 1993.

Tierney, Brian. Religion, Law, and the Growth of Constitutional Thought, 1150–1650. Cambridge, U.K., and New York, 1982.

Witte, John. Law and Protestantism: The Legal Teachings of the Lutheran Reformation. Cambridge, U.K., and New York, 2002.

James Muldoon

Canon Law

Canon law is the law of the church. Prior to the Reformation in the sixteenth century, canon law was used across Christendom. Beginning as early as the second century ce, the church developed legal norms that it attempted to enforce on the faithful. During the Middle Ages (between approximately 500 and 1400), canon law pertained to virtually every aspect of human activity, although, after the Reformation, with the development of the modern nation-state, the purview of canon law constricted as secular law courts became dominant. Canon law continues to govern many aspects of the life of members of the Catholic, Lutheran, Orthodox, and Anglican churches, primarily in areas influenced by religious belief and morality, especially areas of human sexual activity.

James A. Brundage, the foremost historian of medieval canon law governing sex and sexuality, identified three patterns used to categorize and evaluate sex. The first was according to the reproductive function of sex, which formed the basis for evaluating various sexual activities as natural or unnatural. Second, sex was perceived as a source of impurity, leading to feelings of shame by the participants, or a perception that those who engaged in sex were defiled and required ritual cleansing. Finally, sex was viewed as a source of intimacy and a means of expressing and enhancing love within a married couple. These perspectives influenced various aspects of the moral code governing sex and sexuality as it was enshrined in canon law.

HISTORICAL DEVELOPMENT

Canon law developed out of a wide array of sources over the course of many centuries. In the early Christian church, councils were convened to settle doctrinal controversies, and their pronouncement or decision was termed a canon. Gradually, multiple councils issued canons clarifying a wide variety of questions, some quite broad with others directed to specific difficult cases. Another means to clarify doctrine or resolve disputes was through ecclesiastical legislation implemented by a bishop. The letters and decisions of the pope, called decretals, carried particular weight. The writings of church fathers, those early theologians who expounded upon the implications and application of religion in daily life, were another source for law. Finally, a body of literature known as penitentials began to appear in western European Christendom between the sixth and tenth centuries. Penitentials were lists of sins, that is, transgressions against the Christian moral code, accompanied by the appropriate penance. All these sources circulated throughout the early Middle Ages and carried varying degrees of authority. That the various sources frequently contradicted each other added to this proliferation and confusion. Thus, early canon law was a complex of disparate documentation that did not provide a consistent interpretation of doctrine or penalties for transgression.

By the eleventh century there were attempts to collect the various canons and pieces of legislation. Two of the earliest attempts, which influenced the subsequent development of canon law, were the Decretum of Burchard of Worms (c. 950–1025), which drew significantly on the penitentials, and the Decretum of Ivo of Chartres (c. 1040–c. 1116), which drew together numerous patristic texts. It was not until the mid-twelfth century, however, that canon law was collected and systemized. Around the year 1140, the canon lawyer Gratian (d. before 1159) laid the foundations of a systematic approach to canon law with the publication of his Concordia discordantium canonum (Concordance of disconcordant canons). This work, popularly known as the Decretum, included patristic authorities, early church council decrees, and papal decisions, organized according to topic or theme. Gratian organized these varied and contradictory sources and subjected them to logical analysis, reconciling their discrepancies in his own commentary. Through the juxtaposition of various views and assisted by his own critical analysis, Gratian produced a synthetic and systematic summary of church law.

Whereas the Decretum formed the foundation of canon law, pronouncements by church councils and bishops and decretals by the popes continued to be issued. As a result canon law continued to grow, and the Decretum soon needed updating. In 1234 a new collection of canon law appeared based on new legislation and the thousands of decretals that had been issued after Gratian finished his compilation. Raymond of Peñafort (c. 1185–1275), a famous canon lawyer, was appointed by Pope Gregory IX to compile this new collection, known as the Decretales Gregorii or the Liber extra. Subsequently, at intervals, similar collections were published to cope with ensuing legislation. The last of these appeared in 1500. Shortly afterward the collections were bundled together and, along with Gratian's Decretum, formed the complete collection of canon law, the Corpus juris canonici (Body of canon law), which endured from the later Middle Ages until it was revised in 1917. The code of canon law was again revised in 1983. Medieval canon law, then, had currency well into the modern world, formed the basis of western European and North American morality and informed the values of secular law codes across those societies into the twenty-first century.

ENFORCEMENT

From the initial appearance of organized Christian communities, church leaders attempted to impose rules to govern the sexual behavior of the faithful. In his letters, written in the mid-first century, the apostle Paul certainly admonished Christians to embrace chastity and avoid the libidinous excesses that characterized Roman society. As a marginal group Christian communities had only informal, internal mechanisms to control the behavior of their members. When Christianity was recognized as the official religion of the Roman Empire in the fourth century, however, church leaders began to hold councils and issue canons, and they developed effective mechanisms of enforcement that were more effective.

Christian sexual morality was built upon the fundamental tenet that legitimate sexual activity could occur only within marriage and for the purpose of procreation. Although some argued that a married couple could seek an outlet for sexual desire with their spouse or engage in sexual activity as a means of developing intimacy and reinforcing marital love, such acts were considered to be somewhat sinful, albeit permissible. Thus, not every sex act that was sinful was necessarily illegal. The distinction, however, between sexual sin and sexual crime was clarified, and some sexual irregularities were relegated to the internal forum of confession and penance. So, for example, canon law did not comment on the phenomenon of men's nocturnal emissions, although this was considered to be a matter of considerable moral concern. Similarly, although masturbation was a prohibited sex act, it was considered to be relatively minor and private, and better left to the confessional. These examples illustrate how the theological and canonical approaches to sexuality were closely linked and mutually influenced each other.

The ecclesiastical courts, charged with enforcing canon law, concerned themselves with more egregious breaches of the moral code, especially those infractions that were public. For example, adultery was a serious crime, not only because it breached the sexual fidelity that was central to marriage, but also because it could result in the birth of illegitimate children who could challenge the laws of inheritance and defraud legitimate children. Canon law considered adultery as if it were a crime pertaining primarily to women. Men were rarely punished for adultery, although they might be required to perform penance for their sin. A woman convicted of adultery, however, suffered disgrace, and could be relegated to a convent, thrown out of her home, deprived of her children and dowry, and reduced to penury.

Frequently, the only economic recourse for an adulterous wife, as for other impoverished women, was prostitution. Although prostitution was also considered a crime under canon law, for both the prostitute and the client, the medieval church tended to treat it relatively leniently. For example, although a prostitute both sinned and committed a crime, she was also a worker and as such was owed her wages. A client who tried to avoid paying her was guilty of theft. The church tended to tolerate prostitution because it was considered a lesser evil. Without prostitutes men's unbridled lust would have no outlet, and honorable matrons and respectable virgin daughters would be subject to harassment on the streets or even to abduction and rape. This indicates some of the compromises that canon law made to accommodate the realities of daily life. Whereas a man who consorted with a prostitute committed the sexual crime of fornication, or adultery if either were married, this act was preferable to the alternative.

If sexual crimes were public and notorious rather than private and secret, the church needed a means to prosecute the wrongdoers. As a result ecclesiastical courts appeared in the early thirteenth century designed, among other things, to regulate and control the sexual behavior of the laity. The attempt to regulate sexual activity was particularly directed at the unmarried, those men and women who committed fornication. Whereas fornication was considered one of the least serious of the sexual transgressions, it was also believed to be the most widespread. The church developed a system of regulation that permitted court officials to summon people to account for their behavior on the basis of rumor or general suspicion. For convicted couples the punishments were relatively minor and could range from paying a small fine to being whipped three times around the church or local marketplace. The church courts could also require a couple who engaged in habitual fornication to marry, assuming there were no impediments to prevent legal marriage.

LAWS: MARITAL SEX

Although many of the provisions of canon law were concerned with constraining sexual activity outside of marriage, others governed sexual relations between married people. One of the requirements for a legal marriage was the ability of each partner to engage in sexual relations. Although, according to various decretals issued by Pope Alexander III (r. 1159–1181), a couple did not need to consummate a marriage for it to be considered legitimate and indissoluble, sexual relations had to be possible. Hence, an impotent man or a woman with malformed genitals that prevented intercourse was prohibited from marrying. This requirement underscored the importance of procreation as the appropriate goal of marriage and sexual intercourse.

The church revealed its ambivalent attitude toward sex in numerous regulations that prohibited sexual relations, even within marriage. Most of these were related to the notion that sex caused impurity and pollution. This accounts for the imposition of clerical celibacy in the eleventh century. Reformers feared that a married priest would perform the sacraments while still polluted by sexual relations with his wife. Even the married laity faced strict limits on when and where they could engage in sex. Based on blood taboos and ideas about ritual purity inherited from Judaism, sex was forbidden when a woman was menstruating, lactating, or pregnant and after giving birth before she had been ritually cleansed by churching. Concerns about how to exclude polluted people from the sacraments and sacred spaces led to prohibitions on intercourse on Saturdays, Sundays, Wednesdays, Fridays, and feast or fast days, and during holy seasons such as Lent or Advent. All of these prohibitions left on average about twenty-two days per year for legitimate marital intercourse. A couple was also forbidden to have sex in a church or cemetery, which would be polluted by the emission of semen. All these prohibitions, however, could be overridden by the doctrine of the conjugal debt.

The conjugal debt recognized that marriage provided the only legitimate outlet for sexual desire. Either spouse was required to grant the other sexual intercourse whenever and wherever it was demanded. This requirement was more important than the prohibitions of time or place or the woman's physical condition. The rationale was similar to the toleration of prostitution: If a spouse did not have a legitimate sexual outlet when needed, he or she might be tempted to engage in adultery. Although the conjugal debt was reciprocal in theory, the real concern was to channel men's lust and protect them from committing more serious sexual crimes such as rape, homosexuality, or bestiality. In practice it relegated wives to being perpetually available for sex, regardless of their personal wishes.

LAWS: EXTRAMARITAL SEX

Canonists were in general agreement that there was a hierarchy of sexual crimes, although they differed on the relative seriousness of different acts. In general fornication was considered the least serious offense because it did not breach the vows of marriage or chastity. Moreover, there was always the possibility that the man and woman would marry in the future. Adultery was more serious because it ruptured the sacramental bonds of marriage. Fornication and adultery, while illegal, were nevertheless considered to be natural. Far more serious were so-called unnatural sex acts that overthrew the natural order. These imperiled the souls of the individuals and destabilized the social order. There were four categories of unnatural acts: masturbation, bestiality, sex between a man and a woman in an unconventional manner, and sodomy. Masturbation, as a solitary and private act, was considered to be the least serious and was not prosecuted by the ecclesiastical courts. Bestiality, sex acts involving animals, had been considered a relatively minor crime in the rural society of the early Middle Ages. By the twelfth century, however, bestiality was the most serious of unnatural acts because it blurred the distinction between human and animal. Although bestiality carried severe penalties, including killing the animal and lifelong penance for the human actor, it rarely appears in the court records.

Adopting variant sexual positions during sexual intercourse was considered a serious offense, although this issue may have figured more prominently in the confessional than in court. The general suspicion regarding the virtually unavoidable pleasure that resulted from intercourse meant that canonists strove to regulate sex positions that might enhance pleasure and exacerbate the sinfulness of the sex act. The only licit position for intercourse was the so-called missionary position: vaginal intercourse, with the woman lying supine and the man prone on top of her. Any other positions were prohibited, although occasionally a writer might concede some variation, such as sitting or standing, if it would increase the probability of conception or if a disability prevented normal intercourse. Standards of morality dictated that a husband should not see his wife naked or engage in foreplay. Fellatio, cunnilingus, and anal intercourse were utterly forbidden because they were judged to be both contraceptive and unnatural.

Sodomy was an ill-defined category of sexual transgression. For most of the Middle Ages and into the early modern and modern periods, the term referred to sexual acts between two men, particularly anal intercourse. Sometimes the term denoted a wide array of unnatural acts, including mutual masturbation, interfemoral rubbing, fellatio, and cunnilingus. Sodomy sometimes included sex between women, but because such activity did not involve vaginal penetration and the emission of semen, it was not considered as serious a sexual crime as sex between men. Sex between women was more serious if one of the participants cross-dressed or used a dildo to imitate the male role. After the mid-thirteenth century sex between women was considered generally equivalent to that between men.

Although as early as the eleventh century homosexuality had been denounced by reformers such as Pier Damiani (Peter Damian) seeking to impose clerical celibacy, it was not until the thirteenth century that fear of homosexuality led to widespread prosecutions. Sex between men came under increasing scrutiny, and the pace of accusations and prosecutions increased. Sodomy was considered a capital offense by the secular legal system. Some of the men convicted of sodomy by the religious courts were turned over to secular authorities for execution because capital punishment was forbidden under canon law. The persecution of homosexuals that increased during the early modern and modern periods grew out of cooperation between church and state to enforce the Christian moral code.

FROM THE MIDDLE AGES TO THE MODERN WORLD

The canon laws governing sex and sexuality developed over the course of a thousand years were systematized and codified in the twelfth and thirteenth centuries and were enforced across western Europe by ecclesiastical courts. Although in the sixteenth century the Protestant Reformation ruptured the seamless system of canon law and ecclesiastical courts, there was remarkably little change to the laws governing sexual activity. Throughout the sixteenth and seventeenth centuries, the older regulations governing sexual activities endured, with perhaps only an increase in the prosecution of both male and female same-sex activities. In continental Europe the regulation of sex gradually moved from religious to secular jurisdiction. In England ecclesiastical courts endured through the breach with Rome, and church courts continued to enforce canon law with remarkably little deviation from their Catholic roots. In Roman Catholic areas, the ecclesiastical courts were more centralized in the wake of the Council of Trent (1545–1563), although the canon laws regarding sex were maintained. It was not until the eighteenth century that church courts ceased to be the main mechanism for the enforcement of sexual norms, even as canon law continued to enunciate those norms.

The principle features of medieval canon law were carried into the modern world and into the secular court systems of modern states. The vestiges of medieval canon law endured in European and North American values and legal systems into the twentieth and twenty-first centuries. Many jurisdictions in the United States retain sodomy laws that prevent sexual activity between men; some prohibit anal sex within marriage or between any consenting adults. Only in the 1980s and 1990s was the concept of spousal rape recognized. Prior to that the doctrine of the conjugal debt continued to influence society's understanding that a husband had an absolute right to sexual relations with his wife. In some places adultery and fornication remained illegal until the 1960s. Even in the early twenty-first century, the argument endures that the primary goal of marriage is procreation, and consequently, a married man and woman should receive special recognition, status, and privileges from the state. The procreative aspect of marriage is used as a rationale to prohibit same-sex unions. This view can be traced back to the fourth century, when the church argued that the primary role of marriage and sexual intercourse was to produce children. Vestiges of medieval values are found throughout European and North American societies and in those societies that have been influenced by European and North American law and Christianity. Only in the late twentieth century were many of the medieval perspectives on sex and sexuality challenged. Even so, some, such as the prohibition against bestiality, remain deeply embedded in North American and European society's understanding of sexual morality.

BIBLIOGRAPHY

Brundage, James A. 1987. Law, Sex, and Christian Society in Medieval Europe. Chicago: University of Chicago Press.

Brundage, James A. 1993. Sex, Law, and Marriage in the Middle Ages. Aldershot, UK: Variorum.

Brundage, James A. 1996. "Sex and Canon Law." In Handbook of Medieval Sexuality, ed. Vern L. Bullough and James A. Brundage. New York: Garland.

Flandrin, Jean-Louis. 1979. Families in Former Times: Kinship, Household, and Sexuality, trans. Richard Southern. Cambridge, UK: Cambridge University Press.

Friedberg, Emil, ed. 1955 Corpus iuris canonici. 2 vols. Graz, Austria: Akademische Druck-und Verlagsanstalt. [Orig. pub. 1879–1881.]

Noonan, John T., Jr. 1986. Contraception: A History of Its Treatment by the Catholic Theologians and Canonists. Rev. edition. Cambridge, MA: Harvard University Press.

Payer, Pierre J. 1984. Sex and the Penitentials: The Development of a Sexual Code, 550–1150. Toronto: University of Toronto Press.

Reid, Charles J., Jr. 2004. Power Over the Body, Equality in the Family: Rights and Domestic Relations in Medieval Canon Law. Grand Rapids, MI: Eerdmans.

Sheehan, Michael M. 1996. Marriage, Family, and Law in Medieval Europe: Collected Studies, ed. James K. Farge. Toronto: University of Toronto Press.

                                  Jacqueline Murray

Canon Law

Sources

Defining “Canon Law.” Beginning in the second century and particularly after Christianity became legal in the Roman Empire (313), Christian leaders strove to define what it meant to be a Christian (theology and doctrine), how Christianity should be practiced (piety), and how Christians should think and behave (morality). The result was the production of a large number of provisions, or canons, by synods and Popes whose intentions were to resolve emerging difficulties in defining and living a Christian life. The body of documents and precedents that evolved became known as canon law, a term that did not come into use until the beginning of the twelfth century, when effective attempts were made to develop a clear collection of these laws. Medieval canon law was an evolving series of texts incorporating Greek, Germanic, and Roman legal principles. Canon law has been systematized since the Middle Ages, and it remains the law code of the Roman Catholic Church.

Canon Law and Eleventh-Century Reform. For centuries in the Middle Ages, little attempt was made to extract the general principles underlying canon law or to regularize the laws currently in effect. Decrees from ancient and medieval Church councils, papal letters, and episcopal statutes were collected so they could be consulted for guidance when similar situations recurred. By the eleventh century, however, the number of texts had grown unwieldy, and there was a need for a clear set of directives. Reformers of that time, such as Pope Gregory VII and his followers, faced an heterogeneous mass of precedents as they tried to deal with fundamental questions about the structuring of Christian society and the discipline that was to be observed within the Church. One of their pressing tasks was to increase this mass of precedents, so as to have at their disposal all possible solutions to the problems that faced them and to try to discern coherence among them. At the same time, the University of Bologna had just revived the study of Roman law, which was far more structured than Church law because of Emperor Justinian’s sixth-century systematization, the Corpus juris civilis. Roman law provided an example of what could be done, and circumstances in the eleventh and twelfth centuries provided the necessity for doing it.

Gratian’s Decretum . Gratian was a Benedictine monk who taught canon law at the University of Bologna in the 1130s. Apparently frustrated by the lack of a synthetic reference for canon law, he set out to compile one himself. The result was the Concordia Discordantium Canonum (The Harmonizing of Discordant Canons), which became commonly known as Gratian’s Decretum (Decrees), published around 1140. The Decretum was designed to be a general treatise on canon law with insertions of authoritative texts relevant to various topics. From the mass of earlier canons, he selected only those then in force, ignoring those that were no longer commonly used, had been revoked, or were not generally applicable. He also expanded on the principles underlying the law. Although it was not an official compilation, it was for all practical purposes accepted as the fundamental text of Church law and taught as such in the universities throughout the Middle Ages. There were several reasons for its appeal and influence. While the Decretum was incomplete, it was far more systematic than any preceding collection. It provided a starting point for the generations of canon lawyers who later developed more comprehensive and better organized codes. Finally, Gratian’s work made plausible the view that there was, in Christian society, a supreme court to which everyone might appeal for justice. This court, of course, was the papacy, a view that supported the claims of twelfth- and thirteenth-century Church leaders.

Building on Gratian: Later Canonists. The papacy took up with enthusiasm the function that Gratian and other canonists outlined for it. From the 1160s to the end of the Middle Ages and beyond, the papal court functioned as the supreme court of Christendom and, in doing so, provided the most influential model of what came to be regarded as

the rule of law. In its efforts to Christianize all aspects of society, the papacy also produced the bulk of what is still European family, testamentary, and corporation law. Later influential additions were made by St. Raymond of Pennafort and promulgated by Pope Gregory IX in 1234 as the Liber Extravagantium (Book of Outside or Additional Materials), more commonly known as Gregory’s Decretals. Although Gregory did not wish to supplant Gratian, his Decretals eventually did. According to The Catholic Encyclopedia, the Decretals were “composed in great part of specific decisions, represented in fact a more advanced state of law; furthermore, the collection was sufficiently extensive to touch almost every matter, and could serve as a basis for a complete course of instruction.”

The Fourth Lateran Council. Probably the most influential Church council during the Middle Ages was the Fourth Lateran Council, called by Pope Innocent III in November 1215. In canon law texts the council is known simply as “the Great Council,” suggesting its influence on medieval canon law. The Fourth Lateran passed eighty decrees (canons) clarifying and codifying key aspects of theology, Church management, and Church reform. Its ordinances on marriage continue to guide some Christian churches.

Other Decretals. Most medieval popes after Gregory published updates of the Decretals, and Boniface VIII in 1298 and John XXII in 1317 produced other collections of canon law. In 1500 canonist John Chapuis edited the previous collections and added to them subsequent papal decretals. These works together are what came to be called the Corpus Juris Canonici or Body of Canon Law.

Methods of Interpretation (Commentaries). Medieval scholars working with canon law relied on precedents that they analyzed following a set system. The written product of these analyses were books known as commentaries. Essentially commentaries are notes between the lines or in the margins of texts. These notes cite the responses of other authorities to the claims made in the text. Sometimes medieval scholars produced commentaries on commentaries, with the actual text taking perhaps a quarter of the page and the layers of commentaries filling the remaining space. By the thirteenth century, canon law was divided into a series of categories—for example, universal law, particular law, common law, and special law. Each law in each of the many categories was analyzed according to a triple method of exposition: historical, philosophical, and practical. The historical commentary focused on the source and evolution of customs suggested by the law; the philosophical interpretation explained the law in light of its legal and theological principles; and the practical analysis considered the ways the law could be applied. Through development of codes of canon law, especially the commentaries on them, canon law became a subject of study that could take decades to master.

THE FOURTH LATERAN COUNCIL

I he breadth of the topics covered at the Fourth Lat-eran Council in 1215 is suggested in the following summary of some of the canons it issued:

Canon 1: Statement of the basic doctrines of the Catholic faith and the dogma of Transubstantiation.

Canon 3: Procedures and penalties to be used against heretics and their protectors.

Canon 5: Proclamation of papal primacy as recognized since antiquity. The order of primacy after the Pope is the bishops of Constantinople, Alexandria, Antioch, and Jerusalem.

Canon 8: Procedures to be used in accusations against churchmen.

Canons 14–17: Legislation against inappropriate behavior of the clergy.

Canon 21: Requirement that every parishioner make a yearly confession to his or her parish priest.

Canons 23–30: Regulation of ecclesiastical elections and the provision of benefices and other ecclesiastical properties.

Canons 78–79: Requirements that Jews and Moslems wear a special dress to distinguish themselves from Christians and that Christian princes must take strict measures to prevent blasphemies against Jesus Christ.

Universities and Canon Law . Because years of training were necessary to comprehend canon law and the elaborate methods of interpreting it, the growth of canon law and the medieval universities toward the end of the twelfth century went hand in hand. In the fledgling universities, the faculty of canon law was to become an important fixture and shaped itself around the study of Gratian and Gregory’s works. This process produced the new figure of the canon lawyer, who made it his task to define the procedures and legal doctrines by which the bishops’ and papal courts were to operate and become a model for the ubiquitous ecclesiastical tribunals that were called into being across Europe. The canon lawyer’s job was to train people in the necessary grammatical, logical, and juridical techniques to resolve contradictions in sources and to isolate general principles that, after imposing a certain coherence on the records of past legislative activity in the Church, also set out the conditions under which such an activity might occur henceforth. Universities such as Paris and Bologna gained reputations for their canon law faculties that endured long after the Middle Ages.

Sources

Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983).

Stephan Kuttner, Studies in the History of Medieval Canon Law (Brook-field, Vt.: Variorum, 1990).

Richard W. Southern, Scholastic Humanism and the Unification of Europe, volume 1: Foundations (Oxford & Cambridge, Mass.: Blackwell, 1990).

Brian Tierney, Religion, Law, and the Growth of Constitutional Thought, 1150–1650 (New York: Cambridge University Press, 1982).

CANON LAW

Any church's or religion's laws, rules, and regulations; more commonly, the written policies that guide the administration and religious ceremonies of the Roman Catholic Church.

Since the fourth century, the Roman Catholic Church has been developing regulations that have had some influence on secular (non-church-related) legal procedures. These regulations are called canons and are codified in the Code of Canon Law (in Latin, Codex juris canonici).

The law of England, which inspired much of the law formed in the United States, was a mixture of canon law and common law (principles and rules of action embodied in case law rather than legislative enactments). Canon law and English common law borrowed heavily from each other throughout medieval times and together formed the basis for many of the legal procedures used in the United States. For example, canon law's influence is still visible in the concepts of the grand jury, presentment (a description of a criminal offense that is based on the jury's own knowledge), and some characteristics of U.S. marriage law.

Canon law has its origins in ancient church writings, decisions made by the general councils of local bishops, and rulings issued by the pope. These ideas were organized in the mid–twelfth century by an Italian law teacher, Gratian. He sorted the collection into religious law, penal law, sacramental law, and other categories. Along with a set of decisions by the pope called Decretals of Gregory IX, Gratian's work formed the main body of canon law for nearly eight hundred years. In 1917, Pope Benedict XV recodified (revised) the canons. Pope John Paul II reissued the Code of Canon Law in 1983—authorizing increased participation of laity in the church, recognizing the needs of disabled people, and making other changes. A related text, the Code of Canons of the Eastern Churches, was reissued by the Holy See (the seat of papal government) in 1990.

In the Middle Ages, canon law was used in ecclesiastical courts (church) to decide many types of cases that in modern times are decided by civil courts, including criminal offenses. This was because most English Christians did not make a great distinction between secular and spiritual offenses. Crimes that were tried by the church included adultery, blasphemy, slander, heresy (opposition to official religious views), money lending, and gambling. From the late fourteenth to the early sixteenth centuries church courts also heard many breach-of-faith cases concerning contracts, as well as inheritance and marriage-related cases.

Criminal trial procedures in medieval church courts were the source of some features that found their way into common law. Although witnesses were considered the best source of proof of a crime under canon law, suspected offenders could also be tried because of public fame (suspicion in the community that they had committed a crime). An inquest made up of twelve men—a forerunner of royal courts' grand juries—said under oath whether public suspicion existed. If none did, then a judge had no authority to proceed. After establishing public fame, the court's next step was canonical purgation, in which the accused person swore an oath that she or he was innocent. Proof of innocence was accomplished by compurgation, in which several oath helpers would swear that they believed the oath was true. People who objected to the purgation of an accused person had the chance to prove their accusation of guilt.

The use of canon law in governmental decisions is not well documented. In the early fifteenth century, commissions of the English Parliament made use of canonical procedures and canon law experts to decide issues involving laws of war, diplomacy, and other questions. For example, Parliament's justification for deposing King Richard II seems to have been based on papal bulls (decrees).

In modern times, the creation, interpretation, and use of the canons closely resemble those of secular law. The Episcopal Conference of Local Bishops and the National Conference of Catholic Bishops are voting bodies that set policy for the church. When policy has been codified, it is used by judges in Catholic tribunals in determining whether certain practices or requests are acceptable according to the canons. (Catholic tribunals make up the Church's own court system, which interprets canonical policy to resolve questions of church practice.) Case law (previous rulings) is published in Roman Replies and has precedential value. Judges may also request assistance from the canon law society of america, a research organization, in interpreting the canons.

Catholics who appear before a tribunal may consult canon lawyers, who are not usually secular lawyers. A canon lawyer typically completes at least two years' worth of course work in the canons. North American canon lawyers receive their degree in canon law from one of two institutions: the Catholic University of America, in Washington, D.C., or St. Paul University, in Ottawa, Ontario, Canada.

By the end of the twentieth century secular law had eclipsed canon law in most aspects of public life. Interbody disagreements within the church are now often handled administratively rather than by a tribunal, but within the confines of canon law. However, the tribunal is still the only place where Catholics can secure a marriage annulment, and each diocese must maintain a tribunal for this purpose. Divorced Catholics who have been denied an annulment can appeal as far as the Sacred Roman Rota, whose international membership is selected by the pope.

In the 1990s, some dioceses—notably the Archdiocese of Denver—have sought to reduce involvement by civil courts in church disputes by creating dispute resolution mechanisms and other internal mechanisms that make use of the written policies of canon law.

further readings

Beal, John P., James A. Coriden, and Thomas J. Green, eds. 2000. New Commentary on the Code of Canon Law. New York: Paulist Press.

Buelt, Edward L., and Charles Goldberg. 1995. "Canon Law and Civil Law Interface: Diocesan Corporations." Catholic Lawyer.

Donahue, Charles, Jr. 1992. "IUS Commune, Canon Law, and Common Law in England." Paper presented at symposium, Relationships among Roman Law, Common Law, and Modern Civil Law. Tulane Law Review (June).

Gerosa, Libero. 2002. Canon Law. London, New York: Continuum.

Helmholz, R.H. 1983. "The Early History of the Grand Jury and the Canon Law." University of Chicago Law Review (spring).

Jirik, Paulissa, member, Canon Law Society of America. 1995. Telephone conversation, July 31.