Canon Law: the Dark Side of the Good News?

I well remember being taken aback in reading various books on Italian culture and its relationship to the law (including Luigi Barzini's The Italians, Beppe Severgnini's La Bella Figura: A Field Guide to the Italian Mind and then, for a more focused study on law and Catholicism, John Allen's All the Pope's Men: The Inside Story of How the Vatican Really Thinks; for a longer historical overview of some of these issues, John Pollard's book, splendid in so many other ways, is valuable here, too: Money and the Rise of the Modern Papacy: Financing the Vatican, 1850-1950). There is, it seems, a pronounced contrast between Italian ideas of law and those, broadly speaking, in the Anglo-American world. In the former, law would seem to be a nice ideal, but strict conformity to it cannot be realistically expected of fallen human beings always and everywhere, and thus behind the scenes, a certain toleration of non-conformity may be expected. This--since I'm hazarding generalizations here--would seem to be a more Catholic approach. But in the largely Protestant Anglo-Saxon world, especially in the United States, there is an almost puritanical and highly (indeed disturbingly) authoritarian approach to law-breakers as witnessed, e.g., in the fact that the US incarcerates more people than any other comparable country (and attempts to execute some of them also), and was the origin of the absurd "war on drugs," which should be abolished forthwith.

If I was taken aback by seeing these cultural differences, I was all the more so in seeing ecclesial differences in the approach to canon law. The West, above all the Latin Church, seems to have a much more vigorous approach to canon law, and it always strikes me that when Latins refer to "law" they do so solemnly, clearly understanding it to be non-optional and having binding force: the law says X and therefore we do X; the law forbids Y, and therefore we do not commit Y. The East, however, seems to hear the words "canon law" and think "possible suggestions we may or may not heed depending on whose ox is being gored--ours or the other guy's." Thus, if the law forbids X, we will likely heed it only if it's to our advantage. If the law refers to Y, and Y is some totally absurd, anachronistic thing that nobody today thinks about, we will likely ignore it. But don't you dare suggest we should change or update those canons! Say what you want about the Latins, but you have to give them credit: twice in one century, they cleaned up their codes of canon law and tried to weed out stupid things like not going to Jewish doctors, or forbidding the Eucharist to menstruating women. The East would seem to prefer to hang on to outdated texts, perhaps because there is no one centralized mechanism for making changes across the board. (Whether the "great and holy synod" even meets in 2016, let alone addresses canonical issues, remains to be seen.)

It has often been said that in any comparable area, Eastern Christian studies are decades behind comparable Western studies--whether liturgical history, biblical studies, or canon law. Until recently, the people working, at least in English, on canonical issues could be counted on one hand, and the leader among them is of course Patrick Viscuso: see, e.g., his Orthodox Canon Law: A Casebook for Study: Second Edition. But see also his fascinating earlier study, which I reviewed in Studia Canonica, A Quest For Reform of the Orthodox Church: The 1923 Pan-Orthodox Congress, An Analysis and Translation of Its Acts and Decisions.This latter book should surely be required reading for anyone contemplating the 2016 "great and holy synod" to have some idea of the problems that cropped up the last time a reforming council of Orthodoxy was convoked.

Other recent works in this genre must surely include works by prominent Greek Orthodox scholars, including An Overview of Orthodox Canon Law and Spiritual Dimensions of the Holy Canons. But now, happily, we are seeing additional works from Orthodox canonists and scholars. Published in May of this year by Holy Cross Press was Vasile Mihai, Orthodox Canon Law Reference Book (2014, 467pp.).

About this book the publisher tells us:

In one manageable volume, Orthodox Canon Law Reference Book makes the canons of the Orthodox Church, which were written and complied over centuries, searchable and accessible to current inquirers. In his preface, Fr. Mihai explains the place of canons in relation to revealed faith and the personal experience of God s presence. A most valuable introduction distinguishes between Canon Law and secular law, and not only discusses how to interpret canons, but also offers several examples demonstrating the interpretive process of analysis and application. Alphabetized topics organize the pertinent canons, which are then listed chronologically under each topic. Numerous footnotes offer explanations for terms and understandings from historical contexts. Three appendices discuss the meaning of the word canon, the priest-penitent relationship, and Byzantine legislation on homosexuality.

Finally, early next year, we can look forward to a forthcoming book from a Canadian legal scholar: David Wagschal, Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381-883 (Oxford UP, 2015), 368pp.

About this book we are told:

Byzantine church law remains terra incognita to most scholars in the western academy. In this work, David Wagschal provides a fresh examination of this neglected but fascinating world. Confronting the traditional narratives of decline and primitivism that have long discouraged study of the subject, Wagschal argues that a close reading of the central monuments of Byzantine canon law c. 381-883 reveals a much more sophisticated and coherent legal culture than is generally assumed. Engaging in innovative examinations of the physical shape and growth of the canonical corpus, the content of the canonical prologues, the discursive strategies of the canons, and the nature of the earliest forays into systematization, Wagschal invites his readers to reassess their own legal-cultural assumptions as he advances an innovative methodology for understanding this ancient law. Law and Legality in the Greek East explores topics such as compilation, jurisprudence, professionalization, definitions of law, the language of the canons, and the relationship between the civil and ecclesiastical laws. It challenges conventional assumptions about Byzantine law while suggesting many new avenues of research in both late antique and early medieval law, secular and ecclesiastical.