Oxford history of the christian church

3. Canon law: the nomocanons.

The exceptional executive position of the Emperor and the implicit limitations on his authority were exemplified in the rulings governing the Church. The distinction between doctrine and discipline is at once apparent. In one of his Dialogues between a Greek and a Latin the twelfth-century Basil of Ochrida, Archbishop of Thessalonica, began with the pronouncement 'We have no doubt as to the foundations of our belief — the Gospels, the apostolic and patristic traditions and the canons of the holy general councils'. ¹⁰ In addition certain local councils of the fourth and fifth centuries as well as the 'Photian' councils of Constantinople 859-61 and 879-80 were accepted. The council in Trullo ¹¹ or Quinisextum (691-2) was regarded as a supplement to the Fifth and Sixth general councils. It was held that a general council should produce both dogmatic and disciplinary acta, and the Quinisextum supplied the disciplinary canons missing from the Fifth and Sixth councils. These 102 canons were particularly important for the Orthodox Church, but they were not accepted by the West. The 'apostolic tradition' meant the eighty-five 'Apostolic' Canons dating from the pre-Nicaean period, but not of apostolic origin. These dealt with church order and were formally recognized by the Quinisextum which however rejected an apocryphal collection, the 'Apostolic Constitutions'. Only fifty of the Apostolic Canons, translated in the fifth century by Dionysius Exiguus, found their way into the Latin tradition. The 'patristic tradition' was varied and could be contradictory. In general it implied the late third to fifth-century fathers, men such as John Chrysostom and the Cappadocian churchmen, particularly the often quoted St Basil the Great. The later eighth-century St John of Damascus was also revered. As Basil of Ochrida said, these sources formed the basic tradition of the canon law of the Orthodox Church. But they were supplemented in various ways.

The most important additional source was imperial legislation on ecclesiastical matters. On occasion Emperors made doctrinal pronouncements, for instance during the monophysite and monothelite controversies, but such decisions were confirmed (or rejected) by general councils. The iconoclast rulings were rejected by the council of Nicaea II. Matters of heresy came within the purview of the ecclesiastical authorities, but the Emperor was also closely involved. He and his officials could be present at the standing synod in Constantinople which after the ninth century was considered the appropriate body to deal with such matters. Byzantine Emperors were also much addicted to theology and took part in, or themselves arranged, informal and even formal, discussions on disputed doctrinal topics before the matter reached the synod for debate and official pronouncement. ¹² The heresies condemned could, if the synod so decided, be added to the Synodicon of anathemas read out in church each year on the first Sunday of Lent. The criteria for dealing with basic Trinitarian and Christological questions to which most heresies could be related, had already been laid down in the seven general councils, supplemented by the patristic writings. Here the Emperor did not have the final word.

It was different in disciplinary matters where decisions often (but not always) had to be implemented by the civil authorities. Here the Emperor pronounced on innumerable topics, particularly in the earlier middle ages, as is evidenced by Justinian's novels. After his time care for ecclesiastical organization continued to be regarded as an integral part of imperial responsibilities. ¹³ Later Emperors, as Leo VI, or Nicephorus II, issued edicts or codes in which for instance marriage laws, or monastic houses, were regulated. There were innumerable special cases in which immunities were granted to individuals or to a monastic house by imperial edict. Ecclesiastical organization was another field for imperial regulation, promotion from bishop to metropolitan, or the fusing of two dioceses, or creation of new ones. Action of this kind did not always go unchallenged by the ecclesiastical authority, usually the standing synod in Constantinople, as in Alexius I's reign. But in general the imperial right to share in the regulation of the Church in disciplinary matters was accepted.

Thus there were two sources of canon law, imperial and ecclesiastical, and they were not always in accord either within themselves or with each other. They were brought together in collections known as nomocanons in which the two classes of rulings (υóμοι and καυóυἐζ) were set out. The most important of these was the Nomocanon in XIV titles put together by the Anonymous II in the seventh century. This was not the only ecclesiastical code. There was also a sixth-century collection of fifty titles, later expanded in the ninth century. But the Nomocanon in XIV titles was probably the most widely used during the middle ages. ¹⁴ It continued to be supplemented by additions or explanations both from imperial and ecclesiastical sources. The legal codes of the iconoclasts, the Basilics, the Epanagoge, the novels of Leo VI, all contained rulings which concerned the Church. Though never an official handbook, it was the Epanagoge which defined the inseparable bonds binding church and state, Emperor and Patriarch. There were too the rulings of the patriarchs and of the standing synod. When problems arose reference would be made to the canons of the general councils or the patristic writings or the 'apostolic' tradition, as well as to the imperial codes of Justinian, and then to the Basilics of the early Macedonian period and subsequent imperial and patriarchal rulings.

There were not only inconsistencies within the body of commentaries. Contradictory opinions might be found within the works of the same church fathers. Often circumstances very different from those of the early Empire had to be reckoned with. It was in the intellectually active twelfth century that three distinguished canonists, urged on by the Comnenian Emperors, made a major attempt to clarify some of the conflicting and complicated rulings of canon law. These canonists were John Zonaras, Alexius Aristenus, and Theodore Balsamon, and like the canons on which they commented they did not always agree in their interpretations.

Zonaras, noted as a historian as well as a canonist, had been in imperial service. Under Alexius I he was commander of the imperial guard and head (protoasecretis) of the imperial chancery. He ended his life as a monk on one of the Princes Islands. He commented at length on the Apostolic Canons, the synods, and the church fathers. His balanced judgements were used by later commentators (sometimes without acknowledgement).

His successor in this field was Alexius Aristenus who had been nomophylax and orphanotrophus, and then oeconomus of the Great Church. He was asked by John II Comnenus to provide a commentary on the synopsis canonum, a collection attributed to Symeon Metaphrastes. Aristenus was later used by Balsamon. His work was also of considerable influence in the Slav Balkans.

The best known of the twelfth-century canonists was the learned Theodore Balsamon who was active under Manuel I Comnenus and Isaac II Angelus. He became one of the leading deacons of the Great Church and he held the key office of chartophylax. He regarded this office as being of supreme importance, 'the gateway to the secretariat', and he wrote a discourse on the subject. ¹⁵ At some time between 1184 and 1191 under Isaac Comnenus he was elected Patriarch of Antioch but he never went to live in his see. He was essentially a man with interests rooted in the capital and he liked to enlarge on the effects of the alleged Donation of Constantine and the so-called translation of power to New Rome. He was bitterly opposed to the growing claims of the Latins whom he regarded as heretics.

It was at the request of Manuel I (well known for his theological interests) and Patriarch Michael III of Anchialus that he set about commenting on the vast canonical collections, the accumulation of nearly a thousand years. It was a gigantic programme and taxed all the resources of Balsamon's extensive legal knowledge. He also had to deal with the special problem posed by the omission of some of Justinian's ecclesiastical legislation from the later code, the Basilics, which raised the question of the validity of Justinian's legislation. There were also the many ecclesiastical and imperial rulings made after Basilics. ¹⁶ Where differences appeared to be irreconcilable Balsamon seemed to prefer the canonical ruling. ¹⁷ As chartophylax Balsamon was also responsible for drawing up one of the two extant versions (probably the final one) of the replies which the standing synod had made to queries raised by Mark, Patriarch of Alexandria, when he was in Constantinople. Mark was worried by problems which were constantly arising in a minority patriarchate set amid non-Chalcedonians in a Muslim-governed land. ¹⁸

Balsamon was an arrogant man with an inflated idea of the office of chartophylax. He was rigid and harsh in his attitude towards the non-Chalcedonians. 'Do not throw holy things to the dogs' was his uncompromising beginning when considering them. He ruled that Latin prisoners could not be given communion in Orthodox churches unless they had totally repudiated Latin dogma and usages. Churches, he continued, may not be shared with heretics, that is Latins, Nestorians, Jacobites. Anathema to those who associate with them. ¹⁹ Balsamon was certainly a major influence in Orthodox canon law in the later middle ages, but some of his views did not go unchallenged. In the thirteenth century in reply to the query raised by Constantine Cabasilas, metropolitan of Durazzo, 'Must we adhere to Balsamon's rulings in canon and civil law?' it was stressed that Balsamon was not always right, a view 'which I heard many legal experts in Constantinople expressing during Balsamon's lifetime.' ²⁰

The tolerant and humane Demetrius Chomatianus was less well known than Theodore Balsamon and in the long run probably far less influential. He pursued legal studies in Constantinople in the late twelfth century and would have known Theodore Balsamon. He became chartophylax in Ochrida in Bulgaria and then in 1217 archbishop. He had close links with the rulers of the Greek kingdom of Epirus. Unlike Balsamon sitting in Constantinople before the catastrophe of 1204, Chomatianus had to live with the effects of the Latin occupation. It was a time of uncertain and constantly changing boundaries and posed queries concerning ownership and use of churches calling for the tolerance of a Theophylact of Bulgaria (whom Chomatianus was fond of citing). In response to queries from Constantine Cabasilas, metropolitan of Durrazzo, an attitude very different from that of Balsamon was shown. It was pointed out how much Greeks and Latins had in common, the Scriptures, music, preaching, icon veneration, adoration of the Holy Cross, though at the same time without forgetting real differences, as the filloque and to a lesser extent unleavened bread. ²¹

The surviving works of Chomatianus ²² show him dealing with both secular and ecclesiastical problems arising in the Macedonian countryside as well as further afield. The frequency with which he was asked to adjudicate in all manner of secular, even economic problems as well as ecclesiastical contingencies points both to his own reputation and to the extent to which the Church was increasingly regarded as the stable factor in a disintegrating society. Problems referred to him range from a plea for help in countering a conspiracy to murder in which it was planned to dump the victim into a deserted stretch of sea (the boat was ready waiting) to the relations between Greek and Latin clergy in the border regions, and here in direct contrast to Balsamon Chomatianus found it permissible to enter Latin churches. He was confronted with every kind of marriage problem — the rival claims of legitimate and illegitimate children, or of a mistress whose claim to a vineyard and an ox was challenged by angry relations on the ground that she had bought these out of the housekeeping money. He was consulted by his fellow ecclesiastics of Jannina and Anactoropolis. A Greek monk Gregory travelled from Athos to appeal for his ruling, since the Greek monks living in Iviron were troubled as to whether they could communicate with the Georgian monks in the house who, under pressure from the Latin authorities in Thessalonica, had submitted to Rome. ²³ As with Balsamon, though in a very different spirit, Chomatianus's rulings were of value both from the strictly legal aspect and as reflecting situations for which there was little if any precedent. In the case of Chomatianus his activities were marked by an involvement in secular cases which was to increase among churchmen during the later middle ages. ²⁴

It was the work of a fourteenth-century canonist that was most used in the later middle ages and after. Matthew Blastares ²⁵ was a hieromonk from Mount Athos who settled in Thessalonica. In 1335 he produced his Syntagma. This set out a summary of ecclesiastical law (both canon and civil) arranged alphabetically. It relied on the Nomocanon in XIV titles and gave the gist of the comments of Zonaras and Balsamon. Much of the civil law was taken from the Basilics. The merit of this compendium was its conciseness and convenient alphabetical arrangement. It rapidly attained popularity particularly in the Balkans and Russia. In Serbia it was translated into the Slav language in the mid-fourteenth century. It was also used by later Greek canonists and was long regarded as authoritative.

The other late medieval canonist of note was Constantine Harmcnopoulus. He belonged to Thessalonica and became nomophylax and a General Judge. He was best known for his Hexabiblos which dealt only in part with canon law. He also produced an Epitome of the canons which was much used. ²⁶

It was the leading twelfth-century jurists, Zonaras, Aristenus, and particularly Balsamon, who contributed the most important work on canon law in the later period. Their commentaries and sifting broke the ground by interpreting the old rulings to meet conditions in a rapidly changing society. But in this field as elsewhere there were marked differences in attitude. Balsamon's rigidity and intolerance towards the westerners could only make for difficulties in an Empire where the presence of Latins even in the twelfth century was becoming a fact of everyday life. A different point of view was shown by Demetrius Chomatianus. Unlike Balsamon he was faced with the full consequences of a partial political conquest. He was more constructive in his approach both to an alien society and to the ecclesiastical problems posed by the presence of two Churches often inadequately served in respect of buildings and priests.