Church law and the crisis of legal consciousness

(Introductory lecture given at the Russian Faculty of Law in Prague on May 17/30, 1923) 1 It cannot be denied that church law, in the eyes of many, is more a sad necessity than a desirable and necessary subject of study in Russian higher education, both legal and theological. For the first, this useless relic of the past, which history has awarded us, is a right, corrupted and burdened with religion, an unreal, unclean right. For the second, it is religion, dried up, or even distorted by law, giving rise to church “juridism” - the traditional bogeyman of Russian theology. It is clear that secularized jurisprudence is generally not inclined to allow church law its unique, religious nature and - hidden or open, consciously or unconsciously - does not want church law. But church thought, bound by polemical anti-legalism and captivated by the ideal of Christian freedom and conciliarity, does not want it either: there is no corresponding place for the canon in Slavophil theology, for example, in Khomyakov, who only accepts it as a fact, but does not at all substantiate it theologically. There is even less place for it in Dostoevsky’s church romance, and, above all, in “The Legend of the Grand Inquisitor,” where the ultimate expression of the “philosophy of freedom” is given, understood as a direct challenge to the canon and the denial of church authority in the terrible image of the Grand Inquisitor. In essence, the canons of our church romance do not imagine anything else, before and now. Like many other things, Russian thought also skipped over the problem of church law, not at all overcoming it, but, so to speak, conjuring it with the shibolet: “juridism.” However, I am hardly mistaken in believing that as part of all Russian “revisionism,” and above all the church one, which history imperatively demands of us, the attitude towards this problem is subject to revision, and there is even reason to think that a kind of historical benefit is now coming for the canon. The clarity of church-legal ideas and canonical consciousness becomes a duty of church conscience and an inescapable need of Russian churchliness, and this is thanks to the church upheavals and turmoil of our days. As a result of the general Russian catastrophe, the former canonical slumber under the protection of the spiritual consistory and the bishop's office became impossible, and at the same time, canonical responsibility ceased to be the property of the clergy and the episcopate alone; Now the entire church people are called to it not only in theory, but in reality. The conciliar structure of the Russian Church, which triumphed as a result of the revolution, is accompanied by the widespread use of the elective principle and, in general, the participation of the clergy and people in the management of the church, and what was previously not even mentioned becomes church everyday life. On the other hand, church schism, “popes and antipopes”, which also appeared in the Russian church, in other words, the well-known upheavals and fluctuations in the bodies of the highest church authority make everyone a judge in the highest issues of the canon, and no matter how dark, no matter how helpless at times this canonical self-consciousness is, it is irrevocably awakened, for without it it is impossible to solve the pressing question for every believer: with whom to pray, to whom to obey, or - what all these questions boil down to - where is the canonical church? For the church, contrary to theological anti-legalism, inevitably also has a canonical aspect; dogmatically speaking, it is not only an invisible church, but a visible one. And this visible church now has to be sought out and defended through the efforts of canonical thought. But it is not only in this sense that the canonical slumber has probably been left forever by Russian church life. The heavy hammer of history has broken - and also, of course, forever - the state-national fence of Russian churchliness, thanks to which the latter was practically equated with the universal, and thus the consciousness of the true nationality and supra-nationality of the church was lost. Now it is still impossible to determine the innumerable good consequences of this internal church revolution, but it puts us in the face of new, or rather, long-forgotten relations towards the universal church, and, above all, towards the Orthodox autocephalous churches. Along with the centrifugal currents in the church, expressed in autocephalization and the fragmentation of large church formations and the emergence of new ones, there is also a desire to unite the entire Orthodox world, which is already receiving tangible expression. Next comes the question of a single central body of all Orthodox churches. Questions arise that require universal church authority for their resolution, and this entire newly emerging (or rather, resurgent) area requires not only theological, but also canonical consciousness for its understanding. Further, new questions are emerging in the field of interfaith relations, for the craving for unity is also felt outside of Orthodoxy, which at the same time fulfills its universal mission of “unifying everyone,” conquering and convincing with its truth, freedom, humility and simplicity. The first place here belongs to the question of Anglicanism in its relation to Orthodoxy, which, after all, half lies in the field of canonism. Finally, the question of “peace between East and West”, of overcoming the hierarchical schism and dogmatic disagreement between Protestant and Catholic, Eastern and Western churches, still reigns over all the others, in no way diminished or eliminated, but only indefinitely deferred. This question, fatal for the whole world, must finally be finally removed from willful impressionism and arrogant nationalism and transferred according to its affiliation - first of all to theology, and then again to the canon. All these well-known facts convince us that a minimum of canonical consciousness in our days is a requirement of churchliness. The latter is established not only by the Creed, but also by the Book of Rules, and requires not only right faith, but also right behavior, regularity and law-abidingness. Orthodoxy, of course, is not a religion of law, but it does not legitimize lawlessness either. This is how things stand for church consciousness, which is why canonism should enter organically, and not mechanically, into theology. The presence of the latter in the teaching of the Church in itself does not at all represent “juridism,” but its absence undoubtedly expresses ecclesiastical thoughtlessness (in the precise sense of the word). But along with these religious and practical motives, which are valid for church life, there are also serious theoretical motives, thanks to which the problem of church law now acquires exceptional fundamental interest for a thinking lawyer. I believe that my listeners are already sufficiently aware of the latest “crisis of legal consciousness” (P.I. Novgorodtsev), which is a particular manifestation of the general crisis of European culture on the basis of its threatening secularization. 2 Jurisprudence, like the riddle of the Sphinx, faces the question of the law of law, of law not only as a compulsory norm, but also as a value that has an internal basis. Dante and Machiavelli, G. Grotius and Hobbes, Rousseau and Montesquieu, Hegel and Savigny, Stammler and Jellinek, even Proudhon and Kropotkin - all of them in turn explained the meaning of secularized law and proclaimed the truth of the “rule of law” as a self-sufficient law. And as a result - a crisis of legal statehood and general confusion in which the right of the invader triumphs - red or black fascism: “seizure of power” - becomes a universal slogan rushing from different sides. Ulrich von Gugten wrote about his time: “the sciences are being revived, the arts are flourishing, it’s fun to live!” But who now, even if they repeat, reluctantly, the first half of this tirade, full of the pathos of the Renaissance, will join the second? It is boring and even scary to live above this gaping void into which the entire building could collapse. In place of the collapsed “Orthodox kingdom,” convict prison and fist law in a barbaric form triumph. But even here, in the Western world, there is a quiet and still successful rotting of the foundations, which the world war did not give rise to, but only revealed. And the crisis of law is also insurmountable by religious individualism alone, although it is a necessary element of recovery. Secularization can only be overcome by a reverse process; the right of law can be found not in that which is below the law and is itself subject to curbing and formalization through it, but in that which is above the law. Mediavelism, a spiritual system of life in which the law of law is church law, not in its historical implementation, but in its internal norms and tasks, is now a lost paradise and a guiding star. Not everyone has yet achieved complete clarity in this understanding of the crisis of legal consciousness, but its meaning is the same - and the internal logic of legal consciousness returns secularized law to church law, as the summum jus utriusque iuris. It is remarkable that in this era of general legal crisis, church law itself is not experiencing any crisis, and therefore feels stronger than ever. In fact, if you ask a Catholic about this, he will only smile. But in Eastern Orthodoxy, despite the ambiguity and confusion of individual issues and provisions, there are also no signs of a canonical crisis. The Church stands in its stronghold, like a lighthouse among the stormy sea of ​​nations. Among the general legal relativism, church law in the absoluteness of its basic norms for a lawyer can be like a mirror, a means to self-knowledge. The very fact that church law is not modern, that it contains a completely different understanding of the nature of law than in modern times, makes it significant and instructive for a lawyer, like living antiquity, in which not only centuries of Christian history, but also millennia of pre-Christian culture tell humanity. Borderline questions of the theory of law, about what is non-law or super-law, are posed and arise precisely here, so that for our era in jurisprudence, church law could become not an archeology of law, but one of the main disciplines of the philosophy of law, as a wonderful legal experiment, or as an alien law. Therefore, Rousseau and Marx must be overcome not only through Kant and Hegel, but also through Balsamon and Thomas Aquinas. Consciously or unconsciously (the latter more often), jurisprudence is forced to think of the law of law as a problem of ideocracy and theocracy in order to remove it from the inseparable domination of beastocracy and satanocracy, where it is irresistibly drawn by the logic of secularization: Stirner - Marx is the fate of secularization and its punishment. The thought of a mature lawyer must therefore be saturated with the juices of the outwardly withered, but inside living canon tree. It must meet with the idea that only church law contains within itself its justification and foundation, its own right, is the right of right, and therefore does not hang in the air, and that only church power is power that is justified and justified in itself, revealing in itself the nature of all power. And even if this thought turns out to be rejected, it must be rethought and experienced, at least in order to free oneself from naivety or, which, incidentally, is the same thing, from fact-worship combined with abstract formalism. However, isn’t this idea of ​​church law a simple misunderstanding, a contradictio in adjecto, an absurdity? Is legitimate church law possible? How are both of its mutually repelling features connected: the church and the law? The first is a spiritual kingdom not of this world, the path and organization of salvation, serving God in spirit and truth, free and non-coercive communication in love - what does this have to do with law, which is a set of formally coercive norms sanctioned by organized coercion? There is content, here is form, there is communication of specific individuals, here is the relationship of abstract subjects and objects, so isn’t church law equally a fall from grace for both law and the church, a round square or fried ice? If we take the question into the fork of antinomy, without fear of contradictions, then it will decompose for us into two mutually canceling statements, which, however - in this case, like in Kant's dialectics - contain indications of the limits of legal thought, where it naturally exhausts itself. A. There cannot be non-church or extra-church law, for law, deprived of the right of law, ceases to be such, becomes violence, which is not law, even if outwardly it is likened to it: nullum ius extra ecclesiam. B. There cannot be church law, because its idea contradicts the church: where there is law, there is no church: nullum ius intra ecclesiam. Both statements alternated both in life and in history. That there cannot be non-ecclesiastical law is a vital axiom, both theoretical and practical, for entire millennia and for all peoples. In comparison with their immensity, our era of all kinds of secularization, and in particular the secularization of law, legal “legalism,” is only a historical moment, which we incredibly overestimate due to natural, however, human limitations. All culture from the cult and around the cult, in the church, at the church and around the church, or, in any case, around the shrine: the altar, the hearth, the sacred tree, the idol, just as all law is originally sacred law (Fustel de Coulanges!). The latest religious-historical studies are revealing to us more and more specifically this connection and this dependence - between religious belief and ritual (even the most crude and primitive) on the one hand, and the organization of society and culture on the other - showing the sociological significance of faith. And religion has this meaning - mutatis mutandis - at all stages of its development: from crude magic, which, however, is powerful enough to fertilize human society with the sacred bond of sacrificial communion, and human culture with powerful and creative “superstitions” of totemism and taboo, to the frank religion of the Old and New Testaments and the Christian culture already close to us. The formation of differentiated law is a consequence of the decomposition of “culture” and the secularization of life. Law is distinguished from magic and liturgy, but this separation is never and cannot be final. Human thought remembers and knows about this broken unity and, returning, knocks on the gates of the lost paradise (which we observe even now in all these searches for the “right of law,” in all these rumors and the crisis of legal consciousness). If we recall not these early and vague (partly degenerate) supposedly “primitive” forms of magic, but those formations that stand before us already in the full light of historical day - the ancient theocracies of Assyria, Babylon, Egypt and even Rome (for the imperial cult is a degenerate form of the same theocracy), then we will be convinced that all these kingdoms thought of themselves only in canonical form and did not know non-ecclesiastical law. And then we enter the soil of the true theocracy of the Old Testament and the New Testament hierocracies that follow it, starting with the Constantinian era. Arrogantly despised from the height of our sweet “secularization”, the “Middle Ages”, Eastern and Western, papal and royal hierocracy, both equally unsuccessful, collapsed into the “new time”, where we now happily reside, although we are already beginning to sigh about “mediavelism” and are little by little preparing to get out from under the ruins. To concretely feel the extent to which the idea that there can be no non-ecclesiastical law can be seriously taken, take the Old Testament and look at the books of the Law (Torah), the Mosaic legislation given at Sinai. “And the Lord said to Moses: And these are the laws that you will declare to them” (Exodus 20:22, 21:1). What next? "If you buy a Hebrew slave, let him work [for you] for six years, and in the seventh [year] let him be set free for nothing; if he came alone, let him go out alone; and if he is married, let his wife go out with him" (Ex. 21: 2-3), etc. Isn't it strange, from our point of view, "church law"? And, however, the norms of civil and criminal law, without any hesitation, occupy its place in the Sinai legislation (Exodus 20–23), and even “police” law finds a home here: Leviticus, chapters 18–22, 24–27, together with the laws on food and purification (Lev 11–15), regulations on the cult, holidays and sacrifices, on the construction of the tabernacle, vestments and worship (Exodus 25–30; Lev 1–7, 16– 18, 23–25), about the election of the hierarchy: Aaron and the Levites (Ex. 40; Lev 8–9). And all laws, no matter how different these areas are and no matter how far many of them are from cult and faith, are proclaimed in the name of God, as direct commands of God. As you can see, these nomads had no concept of “separation of church and state.” But it is especially interesting for us to observe the moment when, under the influence of the “more enlightened West”, in this case, the nations surrounding Palestine, the Jews also developed a taste for secularization, for a “rule of law”, and they wanted to have a king, like other peoples. This moment of the first crisis of theocracy, which was followed by further ones, is clearly shown by the writer. At the end of the reign of the prophet Samuel, when his sons were helping him, the elders of Israel “said to him: Behold, you are old, and your sons do not walk in your ways; therefore, set a king over us, so that he judges us like other nations. And Samuel did not like this word when they said: Give us a king so that he can judge us. And Samuel prayed to the Lord. And the Lord said to Samuel, Hearken unto the voice of the people in all that they say unto thee; for they did not reject you, but they rejected Me, so that I should not reign over them; As they did from the day on which I brought them out of Egypt until this day, forsaking Me and serving other gods, so will they do to you; Listen therefore to their voices; just present to them and declare to them the rights of the king who will reign over them. And Samuel related all the words of the Lord to the people who asked him for a king, and said: These will be the rights of the king who will reign over you: he will take your sons and put them in his chariots and make them his horsemen, and they will run before his chariots; and he will appoint them captains of thousands and captains of fifties, and so that they will till his fields, and reap his grain, and make him weapons of war and his chariot implements; and he will take your daughters to make ointments, cook food, and bake bread; and he will take the best of your fields and vineyards and olive gardens and give them to his servants... and then you will groan at your king, whom you have chosen for yourself; and the Lord will not answer you then. But the people did not agree to obey the voice of Samuel, and said: no, let the king be over us, and we will be like other nations: our king will judge us, and go before us, and fight our wars. And Samuel listened to all the words of the people, and repeated them in the hearing of the Lord. And the Lord said to Samuel: Hear their voice and make them a king” (1 Samuel 8:5-14,18-22). Leaving aside the theological and all other analyzes of this text, we draw attention to the legal consciousness expressed in it, according to which law as such and the rule of law is a kind of fall from grace, a break in the integral state of human society, direct divine power, in which not only the law of law, but also the law itself is a direct command of God. The Old Testament theocracy also had various parodies of itself, of which the idea of ​​the Muslim caliphate, as a complete union and identification in one person of the highest state and church authority, has been preserved to the present day: the caliphate is the limit for any hiero-caesarism in both its varieties of caesar-papism and papo-caesarism. Currently, the caliphate is being undermined from within by Turkish secularization, and the Young Turks are also seeking a “lawful state” and, having rejected the commands of the prophet, want to have a “king in Angora like other nations.” But having left its Eden, the right yearns for it and seeks justification and sanctification - this is the problem of the “right of the right.” Moreover, some seek this sanctification, according to the religion of man-theism, in the will of the people or a separate class - the proletariat, while others, consciously or unconsciously, although or unwillingly, are slowly retreating to the “Middle Ages”, to more or less decisive forms of the hierocratic way of thinking. And just as the application of mathematics is a measure of the scientific method and scientific content in certain branches of natural science, so the influence of hierocratic ideas is a measure of the spiritual age in the philosophy of law. It turns out to be a somewhat unexpected paradox that the canon is mathematics in jurisprudence. But even without any paradoxes, it remains indisputable that jurisprudence never manages to find complete peace in its independent life and forget about the mother’s womb, where it firmly knew its family name and did not feel the need, “justifying itself,” to seek rights for itself, thereby testifying to its internal lack of rights: there cannot be anything unsanctified, unjustified, “non-church” law. But there cannot be church law, because its essence contradicts the idea of ​​the church, the Christian faith. The merit of sharpening this issue to the possible fundamental clarity belongs to prof. R. Zomu in his work, which, despite its age, has not lost any of its freshness. 3 This idea is brightly, talentedly and brilliantly, but with obvious one-sidedness and violence against history, presented by Zom both in abstract theoretical positions and in a historical study of the emergence of “catholicism” in the place of “ecclesia,” the original church. "The essence of the church is spiritual, the essence of law is worldly. The Church wants to be governed by the power of the Holy Spirit; law always leads to human domination of an earthly, defective, fallible nature. The Church depends on objective truth, that is, on the fact that in truth the word of God and the will of God are proclaimed to the world, being carried out in activity. On the contrary, law fundamentally depends on form (summum ius summa iniuria) and it even must depend on form, for only then can it forcefully realize itself as standing above parties and opposing interests as legal, reaching decisions not on the spur of the moment, but on the basis of solid, traditional, universally valid principles. Connected with this is that law... does not exclude coercion, while the essence of the Church shuns it, for only the free assimilation of the Divine has spiritual value" (S. 1–2). 4 Exaggerating the idea of conciliarity (although, however, Zom himself does not use this expression, in fact replacing it with the term Ekklesia), he considers the church community only as a society of people united by a common faith and common inspiration, but “incapable of legal organization.” (S. 22). He describes this “ecclesia” in vague and vague terms: “ecclesia is corporate Christianity, the body of Christ, the bride of the Lord - a spiritual value, removed from earthly norms, including law” (S. 22), and “even if it has its own organs, it is impossible for its organization to have a legal nature” (S. 22). “There cannot be a legal ruling authority in the ecclesia” (S. 23), “the organization of the ecclesia is the organization of the body of Christ, its life is the life and activity of Christ” (S. 23), “there cannot be a legal constitution and legal governmental authority in the ecclesia,” for its organization is “not legal, but charismatic” (S. 26). “By distributing charisms, the church has a God-given organization..., a God-given higher and lower position..., control by the power of charisma..., only free obedience, born from the conviction that indeed the will of God through the medium of these gifted ones demands obedience..., a free recognition of charisma, which can only be born from love” (S. 27). In the ecclesia, everyone is charismatic, everyone is pneumatic, the “universal priesthood” of saints and elect. Among them, the highest gift is teaching, as well as other ministries: prophets, apostles, preachers, and “recognition of the community for them, as for the apostles, is self-evident” (S. 44). “In the calling to contain the word of Christ, to speak to the community in the name of God, the priesthood of the New Testament consists, and in this capacity (as the vicar of Christ, God), a teacher worthy of his calling, has the power of keys: counseling and management... But the power of the teaching position is not legal power” (S. 51). The activity of teachers in the community depends on the consent of the assembly, and this expresses the formal freedom of the assembly from any formal coercion, based on the recognition of charisma; in this sense, every congregation of Christians has authority over the magisterium (S. 52). The meeting gives free confirmation that what is really taught is the word of God, and this is not decided by the legal situation or the facts of the past (S. 53); this decision “never constitutes an act of government, but a mere consent, a confirmation, even an act of submission” (S. 53). But this is not an authoritative statement, but “a testimony, a recognition that this person was given by God for teaching. The assembly itself cannot give anyone the charisma, the ability, the vocation to teach" (S. 54). Despite the complete freedom of the assembly, it does not have "sovereignty", is not a "democratic organization", "communal government", but divine authority - Gottes (Christi) Regiment (S. 54), which is charismatically exercised through teachers (S. 54). From this direct divine authority and direct revelation of God flows the natural the amorphousness and anarchy of the Christian community, and at the same time any general organization of the Christian church is denied. Every community, since in it the ministry of the Word is carried out and the breath of the Spirit of God is carried out, is an ecclesia, represents the entire church, which, one can say, therefore, has only one dimension - depth, but does not have the breadth, the scale of catholicity, as an all-encompassing community. And therefore, all self-determinations of the church, insofar as they express its true consciousness, are equivalent to each other, whether they come from private or general meetings, “ecumenical councils,” to which it is therefore completely wrong to attribute the power to be special bodies of church power and church consciousness. Therefore, “the whole power of these councils lies in their reception by the church, which has exclusively the declarative value of testimony” (S. 320), therefore no council has power over the church! 5 It is natural, therefore, that the emergence of bodies of church power in the person of the hierarchy - clergy, bishops, metropolitans, patriarchs, as well as in the form of ecumenical councils, in short, the emergence of church law is a fall from grace, perverting the true nature of the church. “The birth of church law is equivalent to the birth of Catholicism” (S. 161), by the name of which Zom generally means the canonically organized church, both Western and Eastern. The need for this organization was born out of lack of faith (S. 162) and the power of sin (S. 163). This development of church power is completed in the Vatican monarchy, and in the Vatican Dogma Zom sees the last word of this development, “the transformation of power from purely spiritual to legal is completed” (S. 455); in this completion of the legal organization of the ecclesia, first the power of the bishop, then the ecumenical council, then the pope served only as steps. “From the untruth (Unwahrheit) that the Eucharist can only be celebrated in an established divine order through the bishop, episcopal power arose; from the untruth that a certain assembly, by virtue of a formal right, is authorized to make decrees of divine truth, ecumenical councils arose; from untruth, the infallibility of the pope” (S. 458). But the entire history of the church is full of this untruth. For a short time, an attempt was made to destroy church law and free the church from it in Luther’s reformation, but even here they quickly returned to the original position only in a new way. This is Zom’s verdict on church history, which is entirely related to the one-sidedness and incorrectness of his understanding. We are, however, not interested here in his historical research, which is in many ways valuable and instructive; what is important is his basic idea of ​​the fundamental denial of church law - an idea, in our eyes, that is obviously false. However, if creative errors are possible, then here we have one of them. The question is revealed to its depth, and in Zom’s construction we have, as it were, an ideological experiment, the interpretation of which is of paramount importance for the theory of law. Zom denies all rights in the church on the grounds that they are of a completely different nature. He should be faced with the question in all its significance of how and why law nevertheless arises in the church, despite this other nature of it? Theoretical bias allowed Som to brush aside this decisive question with references to Kleinglaube (S. 162), to die Macht der Sünde (S. 163) as the source of “Catholicism”, to be content with condemnation instead of judgment, as is often the case. Punctum saliens, the essence of the question, is precisely how law will be born from non-law. And that it will be born is evidenced by the fact of church law, which needs not denunciation, but illumination. Zom's merit lies in the fact that he put forward this fact with all the energy of doctrinal one-sidedness and took it under the glass of a theoretical microscope. Zom is absolutely right that the nature of the church is different from the nature of law. The latter, so to speak, is not autogenous, but heterogeneous, comes from the fact that there is non-right and at the same time super-right (for from the lower the higher cannot be born, contrary to Darwinian prejudices, although the higher includes its lower levels). After all, the right of law, or natural law, which jurists seek in law, is in fact not contained in it, but outside it. And in church law this ideal genesis of law, this ontology, so to speak, appears with complete clarity, which is dazzlingly revealed in Zom’s construction and especially in his problematics. Or Zom is right that there is no internal connection between the life of the “ecclesia” and canon law, for the “fall” means precisely the severance of the connection, the loss of integrity; or he is wrong, and then we have before us the amazing fact of the birth of law from non-law; In this fact, it is obvious that the understanding of law as an autonomous, self-sufficient area does not correspond to reality, at least for the entire area of ​​ecclesiastical law. But we did not forget that, according to the first part of our dilemma, there cannot be non-ecclesiastical law, in other words, that historically all law was first ecclesiastical. And the “evolution” of law towards its differentiation, like any evolution, does not create anything new, but only “unfolds” (according to the exact meaning of the term), reveals. The land on which the roots of this “evolving” law are nourished is religion, in this particular case, the Christian Church. If they say that this preaches dogmatism in law, then we will answer without hesitation: yes, dogmatism. Our time has taught us not to be afraid of decisive words. But critical dogmatism, knowing itself, its place and its measure, in contrast to blind and already truly dogmatic dogmatism, which is this focal doctrine of evolution, like taking ribbons out of an empty pocket, or the doctrine of law self-sufficient in its formalism, dogmatic jurisprudence. Law, detached from the soil and excessively “differentiated” into pure “legalism,” begins to wither and wither, a “crisis of legal consciousness” sets in, which we have today, and the search for “natural law”, the right of law, begins. The spiritual starvation experienced by modern jurisprudence and the peculiar feeling of some kind of groundlessness are a consequence of this separation from religious roots, the worldly name of which is secularization. And it is remarkable that Zom, in this case in complete unanimity with all Protestantism, dooms the right to this secularization, since he denies all possibility, all legitimacy of church law or, more broadly, denies any connection between law and faith. If such a connection is only a consequence of the Fall, having neither meaning nor justification, then the right is forever deprived of any ecclesiastical sanctification and is doomed to eternal secularization. This secularization was actually carried out by Protestantism and its pagan variety - humanism, and this process is now essentially complete, having its ultimate expression on the technical side of sophisticated legal formalism, and on the content side - the frank law of the strong, the fist law of communism. The crisis of law consists only in the consciousness of its secularization, in the complete gap between ius humanum and ius divinum. And it is quite understandable, on the other hand, that church law does not experience this particular crisis, for in it this connection remains unbreakable. Given the general problematic nature of all rights and all law in our days, church law, in essence, alone has the right to be called law, because it is a law based on ius iuris - ius divinum. We can say that there is as much law in law as there is ius divinum in it, in other words, as much as religion. But understood in this way, the crisis of law ceases to be a crisis of jurisprudence, which can be overcome by the means of jurisprudence itself. No, the law cannot help itself by its own means; its crisis is included in the general religious crisis of modern times, from which modern humanity is exhausted, the crisis of faith. So, these are the questions that Zom’s teaching, or rather, his problematics, prompts us to ask. In relation to law, it is its radical secularization, dooming it to groundlessness. But the groundlessness of law is not only the vacillation of legal thought, but also a disease of legal consciousness, which is nothing more than anarchism, a crisis of power and the law it asserts. For secularized law leads to anarchism, not being able to establish the principle of law, it replaces it with legal discipline based on admiration for the fact of law. But fact-worship and drill do not replace the lost shrine of law, and in response, the menacing whispers of various “only ones” are heard: Ich habe meine Sache auf Nichts gestellt (Stirner). Zom himself professes church anarchy (under the name of “ecclesia”), and from this side his point of view is also instructive, although less original. Zom's initial dogmatic premise, which he has in common with all Protestantism, is - in the name of a universal royal priesthood - the denial of an ecclesiastical hierarchy possessing special mysterious power and corresponding powers, in short, the denial of the sacrament of the priesthood. “From the order of the Eucharist the order of the Church is born, from the secret priesthood the hierarchical priesthood is born” (S. 227), he says with censure, but states the fact absolutely correctly. The denial of the priesthood and the denial of church law are one and the same, because one is based on the other. Law and power are inseparable and correlative, because there is no law without the authorities that enforce it, just as there is no power that is not based on law, is not legitimate, and does not thereby become immanent in the field of law. However, just as law is rooted in what is above law, ius humanum in iure divino, so legitimate power comes from law-making power and, to that extent, superlegal, and in this sense, the nature of any power, from the point of view of self-sufficient law, is for it transcendental, mystical, supernatural. In the simple language of Revelation this means: “there is no power except from God,” and in the language of law this is expressed in principle: princeps legibus solutus est (and there is no need to understand this exclusively in relation to the monarch, but in general to sovereignty). The last principle expresses the outer limit of law, but is by no means its negation: it is a boundary sign that leads to law. But what the sovereign is in the realm of formal law is “natural law,” conscience, in general, the main content, the right of law, in the material realm. And the sovereign itself, power, allows for justification, and, therefore, needs it, for there is a distinction between legal and illegal power, otherwise why seek recognition - not only for fear, but also for conscience - the authorities are downright robbers? And this mysterious power is clearly revealed only in the church, only church power is in principle indisputable and self-evident and does not need justification, it does not even allow it, for it is connected with the rank, there is a rank. Therefore, only church law knows power, and therefore it is law in the real sense of the word - a new surprise and a new paradox of church law! In fact, here we can clearly trace how the initial clots of law are formed, its first crystals arise. Yes, Zom is absolutely right that church law, together with church authority, is formed from the order of the Eucharist, which was established by the Savior: “do this in My remembrance.” And in these establishing words in nuce lies all church law. The power and power to celebrate the Eucharist, which does not belong to man, is given by God in the sacrament of the priesthood, and this mysterious and in the precise sense supernatural power, this divine power of the sacrament, which makes every priest, and especially every bishop, as the priest of priests, the “vicar of Christ” - vicarius Christi, is at the same time the source, and, moreover, the only source, of ecclesiastical power, and, in the final analysis, of any not yet secularized power. The power of the Eucharist, radiating into human society, gives it a legal basis. It was always said with ridicule by the “enlighteners” that initially power belonged to the priesthood, including the Christian priesthood. But this is absolutely true, and it could not be otherwise, if we take into account the supernatural nature of power. The holy order is not and should not be a worldly power. But it is inevitably and essentially church power, invested with the fullness of church discipline, and through that it is the support and source of all power, since ius divinum is the right of law, and the priesthood is the organ of communication of sacramental gifts, and in particular, the sanctification of power. This is not the theory of two swords held in one hand - the high priest or the king; here only the internal hierarchical relationship is revealed, the ontology of power, according to which the church with its authorities, without having worldly power, however, affirms it and spiritually nourishes it, of course, until the power itself turns away from it, surrendering to the empty and vain elements of the world. Then, secularizing, it inevitably falls into the arms of anarchism, and at the same time under the threat of the many-faced “big fist”, called la volonte du peuple, or some social Nebuchadnezzar or social Bonaparte, the approaching tread of which can already be heard through the roar of revolutions. Returning to Zom, we see that the denial of the priesthood and the canon law based on it - and the connection between them is indisputable and shown by Zom with complete convincing - leads him to the secularization of not only common law, but also church law. Since the church cannot do without the “order of things,” this order of things is given here by the state consistory on the principle of cuius regio eius religio, instead of the church canonical system, and church legal utopianism leads to general secularization. Zom's desire to overcome jurisprudence in church life, which appears to him, of course, in the stylized image of romanticism, would be significant only in the sense of an ideal task, which boils down to the dissolution of law in the atmosphere of church love, to overcoming law not by denying it, but by reducing it to potentiality. Here Zom meets with Dostoevsky, as the author of the chapter “on the ecclesiastical court” in The Brothers Karamazov, but also disagrees with him, since Dostoevsky is talking specifically about overcoming law and the state in their particularity, and not about the denial of law in its original source, namely church law. If Dostoevsky’s ideal can be expressed in such a way that all law should return to its original source and therefore there should be no non-church law, 6 then Zom denies precisely church law, putting forward the antithesis already known to us: there cannot be church law. However, he does not draw a further conclusion from it, namely, that there can be no legitimate law at all, and all law is violence, “lack of faith” and the fall. The hypnosis of the “rule of law”, which has now weakened to a large extent, was still in full force 35 years ago. But just as much as the laurels of the “rule of law state” have faded since then, just as much should the thinking lawyer’s fundamental interest in the problem of church law, which therefore stands on the theoretical priority of the day, rise again, if only our time is destined to observe this one among other “queues.” There is obviously an opposition between the principle of the “rule of law”, self-sufficient legal formalism, and church law. But this opposition must be understood in a timely manner and fully measured in order to freely and unprejudicedly pose the question: where is the right? We pointed out that the canon is based on dogma - quite frankly and consciously. Previously repeated attempts to build an autonomous ethics, sometimes leading to an ethical religion, have taught philosophical thought a clearer understanding of the relationship between ethics and dogmatics. Although stubborn attempts to build “morality without sanctions” are still ongoing, in essence, before the court of thought, the question must be considered resolved that in its premises ethics is based on dogma, whatever it may be. (Usually, in a more general form, this idea is expressed in such a way that ethics is based on “metaphysics,” but the latter, in relation to ethics, has the meaning of dogmatics.) Isn’t it time for jurisprudence to pose the same question for itself: since it is also based on dogmatics (ecclesiastical or non-ecclesiastical)? If yes, and there are grounds for an affirmative answer, then, obviously, first of all, the problem of church law, in all its originality and fundamental severity, must be rethought. And first of all, again, because it is not modern, but is an oasis of history in the sands of modernity. And with the same mixed feeling of embarrassment and curiosity with which we enter the shadow of an ancient church, we now enter the Gothic building iuris canonici. Scientific notes of the Russian educational board in Prague. Prague, 1924. T. I. Issue. 3. pp. 9–27. I have been talking about this crisis on various occasions and in various forms for about 20 years: see “From Marxism to Idealism,” 1903; “Two cities”, 1910; “Non-Evening Light”, 1917; “Quiet Thoughts”, 1918; various essays and handwritten dialogues. Rudolph Sohm. Kirchenrecht. Bd. I. Leipzig, 1892. (System. Handbuch der deutschen Rechtswissenschaft, hrsg. v. Binding. Abth. VIII, B.I). In brackets are links to original pages. The translation of the quotes apparently belongs to Fr. Sergius Bulgakov. – Approx. ed. It is instructive how close Zom’s conclusions come here to the corresponding teaching of Khomyakov with his militant anti-legalism: “Councils are not power, but a voice.” They did not define, but only expressed the thoughts and faith living in church communities. They received special power from the consent given by absent Christians to this confession. However, Dostoevsky’s ecclesiastical thought, as noted above, is not alien to Zomov’s deviation towards the denial of the canons in the name of Christian “freedom”.