Law of the Orthodox Greek-Eastern Russian Church as a subject of special legal science
Право православной грековосточной русской Церкви как предмет специальной юридической науки
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Contents §1. About law § 2. About church law § 3. The position of the Church in the state and the mutual relationship between them § 4. The basic principles and characteristic properties of the law of the Russian Church § 5. The task of the science of church law
The proposed essay aims to clarify, as completely and thoroughly as possible, the reasons why scientific research on the law of the Russian Church should be separated from the general cycle of legal sciences into a completely independent science.
What causes such a task? Does anyone deny that the law of the Russian church can be the subject of a special and independent science? What causes such a task? Does anyone deny that the law of the Russian Church can be the subject of a special and independent science? - In response to this, it must be said that if this right of his is not directly challenged, then something much worse is expressed, an extremely arrogant attitude towards him is expressed, that any originality, originality, individuality is denied to him; it is stated that it is something underdeveloped, undefined, that it is partly a weak imitation of Byzantium, which has long been ossified, so to speak, in the middle moment of its development, partly an unsystematic combination of provisions and institutions accidentally created by the arbitrariness of secular state power, having no relation to purely ecclesiastical tasks and no canonical character.
By virtue of the first of these grounds, not only Russian canon law, but also the very basis, and trample, and its original - Greek canon law, deserves only a brief note in studies of the canon law of the Western Church, to the extent that any abnormal deviation of schismatic societies from the pure and abundant source of truth and the truth of the Catholic Church deserves such a note. This idea is very consistently and clearly expressed by the old learned canonist of the Western Church F. Walter in his: Lehrbuch des Kirchenreichs aller christ. Confessionen. Bonn. 1822–1856. The newest canonist F. Wehring did not refuse to pursue this idea in his: Lehrbuch des katholischen, orientalischen und protestantischen Kirchenreichs. 1881. By virtue of the second of these grounds, all the law of the Russian Church, especially the current one, should be included only as part of the material in the general state Russian law, as flowing from one source, from which all Russian law and legislation flows.
Are there really any characteristic properties in the essence of the law of the Russian Church, or in its historical development moments of such deep importance that it is worthy of independent study, as an end in itself, as a self-sufficient object? – This question turns out to be not at all superfluous and not idle.
An even more important impulse to put it directly and resolve it precisely in a positive sense appears in the sufficient prevalence and rather sympathetic reception given by the present century to that political and legal doctrine, according to which the only source of law is the state, that church law is not law, but something completely different - something that should, having got out of the field of jurisprudence, where it ended up due to a misunderstanding of our fathers and divas and great-grandfathers, find a place for itself or in moral theology, or in the science of social and political improvement, or somewhere else. To what extent are the claims of this doctrine legitimate? Does the church, in its essence and in its past, have an urgent need and power to create and firmly protect its own right, or should it abandon this and submit entirely to the regulation of state power and surrender itself entirely into the hands of the servant of its state science, preaching the above-mentioned doctrine?
For these reasons, we decide to offer the reader our reasoning, research and considerations tending toward an understanding and solution to this issue. We will direct them to achieve the intended goal along a rather long and roundabout path. First, we will talk about law in general, then about church law in general, then we will present a brief historical outline of the relationship in which the church and the state became precisely on the issue of the power of both to issue their own legal definitions in the sphere of their jurisdiction, then about the specific properties of the law of the Russian Church and, finally, about the tasks and goals of the scientific presentation of Russian church law.
Analysis of the concept of “law”. The origin and deepest basis and source of law. Law and morality. Classification of types of law. Public and private law with their subtypes.
What is right? Despite the greatest diversity that prevails in the definitions of the concept of law given by legal science, they all agree, however, on some of its main essential features. So, first of all, they all assume that social life and human society are the necessary soil on which law grows and develops. Law is a phenomenon and at the same time a necessary condition, a postulate of community life, of social life. Social life consists of a continuous relationship between individuals, which arises between them as a result of and as each of them manifests itself in external activity. Every action of one necessarily provokes one or another attitude towards it from the other; in extreme cases, this other responds and is completely apathetic towards the action of the first: he just does not prevent the action from being performed.
In the life of a more or less numerous society, even such a simple, completely negative attitude of one towards another necessarily presupposes the dominance of generally accepted rules, the observance of which is guaranteed by one means or another. Without the dominance of such rules, it is inconceivable for one to place another in such a relationship that he at least does not interfere with action. Moreover, this must be said about relations of mutual assistance, joint actions, exchange or temporary lending of things, or about relations of hostility and opposition. Without the rule of generally accepted and guaranteed rules, society would very soon perish from disorderly clashes, hostility, and interference between its individual members. The rules, generally recognized and guaranteed, prevailing in a given society, constitute the law of this society.
Since in their totality they embrace the order that exists among society and dominates it in all kinds of relationships into which individual members enter into each other, and this is their essential purpose: law is sometimes defined as “a set of norms by which the external order of life of people in a certain living society is organized” 1 .
If you then pay attention to the effect that the right has on individuals, prescribing for them a certain order and conditions of activity: then it is not difficult to see that this action consists, on the one hand, of limiting their will, in its determination to this or that activity, or its manifestation outside, on the other hand, ensuring the freedom of its discovery in a certain area, so that from the subjective side, the right in question can be defined as an objective definition of the freedom of a person. The task of objective law in this case will be to protect and ensure such an order in society in which everyone, acting in accordance with his vocation, purpose and interests, and using the freedom he needs for this, at the same time would not, through this, constrain the free actions of each other, in short, so that one in relations with another maintains the relationship of person to person.
If, finally, we pay attention to the most elementary relationships on which the entire content of mutual assistance and relationships of a person, as a social unit to another, as the same unit, is based and to which, in the end, is reduced: then such elementary relationships will turn out to be either the desire of one to give something to another, or vice versa, to either receive from him, or with his assistance to take possession of some thing (in the broad sense of the word). All and every interest of a person in a community life ultimately comes down to these elementary relationships: without them, especially without the second of them, there is no need for a community life. Hence, objective law is defined as “an order established by God in the human race, according to which everyone can receive and retain the benefits that are necessary and useful to him, without, however, violating the freedom of others” (Echner).
And an objective right, by virtue of this, can be defined as a person’s claim to a thing that exclusively and necessarily belongs to him, based on this objective right, or recognized by him (Goodsmit, course of pandects § 17).
This is the attitude of law to the private activities of individual people, who, according to natural laws, are called to live socially, as social units. The attitude of the character is somewhat passive; it cares, is concerned about the interests of private individuals, it wants each person, to the extent possible, given to him by nature, to taste the good that constitutes freedom for him, the desire to manifest his personality in the external world of phenomena. This, however, does not limit the task of law, nor does it exhaust its essence: just as social life itself and the private purpose of a person are not limited to satisfying only personal interest. Thus, the achievement of personal interests, the implementation of personal tasks by everyone necessarily presupposes the ability of everyone to sacrifice some part of their interests for the well-being of the whole society, more or less extensive in quantitative terms.
Thus, the natural connection and dependence of private interest on the well-being of the whole already requires that law, this leader of private life, not be limited only to ensuring private interest, but also guide, instruct, demand, and direct the activities of private individuals to maintain the whole. In this capacity, the law, through its special representatives, already acts actively in the presentation of such rules, norms of activity, which tend not to ensure the freedom of a private individual, but to encourage him to act to achieve the public good, acts with the presentation of positive instructions on what it should do and prohibitions - not to do something, or with instructions on how to act. This active relationship of law is even more elevated in its significance by the fact that, according to the highest moral laws, not only an individual person is called upon to fulfill his private purpose on earth, but also individual unions of people, and, finally, all of humanity.
According to the eternal laws of the Creator, His will is carried out on earth, both in particular by each person, and by larger or smaller unions, and by all humanity. The purpose of law is to direct the life and activities of individual people in such a way that, while each fulfilling his own purpose, they at the same time carry out the highest purpose common to all of them. According to this, we recognize the following definition of the concept of law as the most complete and profound: “law is an organic whole of conditions that limit the activity of the will to achieve a general purpose and the private goals of human life and humanity contained in it” (Arens).
This is the essence of law. No matter from what angles we try to look at it more and more, we will eventually inevitably come to the conviction that where human society exists, its “organic whole of conditions” that govern the course of life of this society does not operate. But in the human race, societies arise, grow, cease to live or cease to exist; Law is also subject to the same law. Therefore, the question is natural: where does humanity draw the laws of its social existence, where does it receive its right?
The history of the development of the human race testifies that these issues have been and are being resolved by both religion and philosophy, and are being resolved differently. However, as for religion, it is natural, and God-revealed - always and all peoples have resolved these issues in generally the same way: according to the beliefs of all peoples, the right from God and submission to him is not only a matter of natural necessity, but also a positive commandment of God to man. Man, as nature itself is destined to be a social being, is already born with an irresistible desire and inclinations to be a subject of law and a member of a legally established society: “the idea of law, says Scherer, is, as it were, given to man by nature, although a certain form of legal order should not be confused with it; As much as the idea of justice undoubtedly exists, so little is known about abstract “law in itself” 2 .
Many natural religions trace the origin of law and state structure to God, which is why priests appear everywhere in the most ancient eras of state life with very important significance in the interpretation of law and in the organization of forms of state life. And revealed religion justifies this universal belief. The Book of Genesis traces the right of man to possess the land and its fruits directly to God, in the well-known commandment of God to the first people: grow and multiply and fill the earth and subdue it (Gen. 1:28). The sayings regarding the structure and government of kingdoms and peoples are so clear. “The Most High possesses the kingdom of man, and He will give it to him” (Dan. 4:22, 29). “By me kings reign and the mighty write the truth.” ( Proverbs 7:15 ). There are classic passages in this regard in the New Testament, especially in Ap. Paul: “to bear power is not from God, but the powers that exist are created by God.” (Rom.13:1). “Therefore, it is necessary to obey not only for anger, but also for the sake of conscience, for the sake of and tribute to Dante: for the servants of God are in this present abiding” (Rom. 7: 3-6).
The philosophy of law in resolving these issues represents, in general, two directions. One thinks to find the basis of law in man himself, in his mind, in man’s ability to subordinate his actions to certain restrictions in the interests of his own well-being and, declaring law, every social and state structure, the work and result of his own, arbitrary and intentional invention of the human genius, strive to find the deepest basis of law in the requirements of the human mind. According to this theory, law, in all its manifestations, on all aspects of social life, arises through a contract: even the entire state organism with the relations of domination and obedience in it is the result of such a general or social contract. The most prominent representatives of this direction of subjectivists can be indicated: Zh.Zh. Rousseau, Locke, Bentham, Kant, Fichte, Hegel and currently R. Ihering.
Without going into a detailed consideration of this theory, we will only note its following drawback: considering the beginning of the legal structure of human societies to be a matter of intentional and conscious calculation of individuals, it obviously presupposes that the state of humanity preceding the legal structure was highly flourishing, already well-organized to such an extent that its individuals are able to reason, make agreements and actually carry out agreed decisions regarding mutual relations with each other. Only in such a state of society is it conceivable that the invention of those legal norms that are known under the name of contracts is conceivable. The theory, therefore, does not solve the question of how humanity reached the very original social structure. In any case, it is historically impossible to prove that states were created in such an artificial way, deliberate on the part of individuals. The historical life of mankind begins with the formation of social life: but how this process of formation took place remains unknown.
This deficiency of the theory (expounded in full by Rousseau) was thought to be corrected in modern times by R. Iering. In his study “The Spirit of Roman Law at Different Stages of Its Development,” he pursues, based on data from the primary era of Roman history, the idea that the initial driver of legal education is the struggle of a self-conscious individual for his recognition from the despotism of brute force that constantly oppresses him. As the self-conscious individual succeeds in this struggle, the overwhelming force of despotism, in its own interests of its domination, makes concessions to it: the winner agrees with the vanquished on terms mutually and relatively beneficial to maintain relatively peaceful relations. Through a long struggle, property rights are established, the only guarantee of which at first is the owner’s own strength. his own reprisal against the offender is arbitrariness.
The entire development of law, its entire progress consists in the development of the politics of force, and at the highest stage of its development, law remains only a system of goals of society, secured from private arbitrariness through coercion. Law is the mutually binding force of law, the self-subordination of state power to its own issued commands. Egoism imposes on force the bonds of right.” As a “politics of power,” law becomes the self-restraint of the powerful, who is restrained in suppressing other people only by the fear that bitterness on their part will not cause such opposition, which will be, if not impossible, then very difficult to cope with. Law is the creation of the real world, it is a manifestation of force, not disorderly, but bringing into the world along with itself a sense of right. In power, which restrains itself for its own benefit, lies right.”
This gloomy view of law and the source of its origin is untenable and false at its very foundation. Judgments such as “law is the politics of force”, “is a manifestation of force that brings a sense of right” are contradictions in adjecto. The victory of the strong over the weak in itself is only dominance and, in essence, a direct violation of the rights of the weaker; it is downright injustice. Will the rules dictated by the politics of power be recognized as law by the weak, for whom they are unilaterally dictated? It is not force that creates law, but on the contrary, the sense of right limits force; it alone is able to form a compact with the aim of counteracting force and providing protection to the weak, who is also a member of society. Human coexistence would not be far off if it were held together only by rules enforced through physical coercion.
This flaw in Iering’s theory was soon noticed and brought to his attention by two opponents: Dan (Vernunft im Recht) and Thon (Thon? Rechts begriff in Zeitsschrift für das privat und offentliche Recht, 2), of whom the first forced Wehring to agree that force is powerless to create law, it is created by reason, bending egoism to mutual recognition of interests, to mutual respect for the individual. Reason turns lard into a weapon for protecting the established, peaceful order of relations between people. And the enslaved force never recognizes the order forced upon it as a right. Where we see only a clash of strength and dexterity, there is still no right: here there is still an open struggle, where they strive to evade the threatening blow in order to turn in turn on the enemy. Only in the pacification of obvious struggle or muted discontent does law arise. It is not strength that gives peace, but reason.
A. Ton made a very fundamental objection to Iering’s position that law is a system of society’s goals secured through coercion. Contrary to Iering, he argues that law does not need coercion, law is the will of society, which determines the order of action of its members; it directs and conditions their activities, preserving the meaning of law as long as members of society consider it necessary to be guided in their actions by its instructions. It does not consist of commands, but of provisions, rules that apply to individuals, as a motive, a basis for their actions. Recht ist motivation: es hört auf Recht zu sein, wenn es nicht mehr als Motivwirkt (a right is an incentive (motivation); it ceases to be a right when it cannot become a motive for activity). When e.g. the right is expressed in a conditional form: if the enemy approaches, shoot; then what is meant here is not an order to shoot, but an indication of how to act.
Next to the rules of law, the execution of which is ensured by coercive measures, rules live and operate, the observance of which is based solely on the recognition of their necessity. One has the meaning of a right secured by coercion, the other is a right concerned, if one may put it this way to convey the term verkummertes Recht. When the opinion that society is counting on a certain course of action reaches such strength and significance that such a course of action is required by society as a matter of course, when such an opinion then turns into a motive that guides activity, then the consciousness of necessity that has come here (opinio necessitatis) turns custom into common law. The right of a particular society is everything that is recognized and respected as its will and does not matter whether there will be a coercive apparatus (Zwangsapparat) to strengthen this will” 3.
One cannot, of course, disagree with the fact that in the historical development of peoples and states, both “power politics” and opinio necessitatis take place, as factors of a legal system or another form. But if it is true that force alone is not able to establish rights, then it is no less true that the mere consciousness of the necessity of a certain rule is still powerless for this rule to be realized. At the same time, the consciousness of the need for a certain legal order is not always inherent in all members of society; on the contrary, the effect of law is very often most manifested in that environment where there is no, where there is not yet a clear consciousness of this rationality, but where the motive is only the feeling of right, i.e. an irresistible, as if instinctive attraction to fulfilling the rules, or where the root motive is submission and obedience to the deity.
Here lies a very strong reason to look for the original source of law not in reason or other abilities of man and humanity, but outside of it - in God, who put into the human spirit the idea of a social system, which is revealed either as an instinct or a sense of law, or is cognized and realized as a requirement of reason - in a word, here is the basis for the development of another direction in the philosophy of law - the direction of the Objectivists. Its most important representatives are: Bork, De Mestre, the so-called Historical School with representatives Savigny and Pukhtoy, and Stahl.
“Right is a divine order,” says Pukhta, given to man and perceived by his consciousness. Legal provisions are born in human consciousness, but how do they reach universal human consciousness? In response, one can put forward the same difference that I allow for religion, for right itself, for people for whom the knowledge of its origin is not yet alien, is part of religion. Law reaches human consciousness partly in a supernatural way, by revelation - our sacred books attribute the original expression of law to God - partly in a natural way, through reason and inclination innate to the human spirit" 4 . Both law and the state in its original origin are something given by God, the supreme power and obedience to it are established by God: it was not the invention of man that invented all this. But, on the other hand, the formation and development of states in their constitution are provided by the Creator to the mind of man, his will and freedom.
This will, which forms the state, is not a single will; it has never been able to form such an organic whole as a state, and a state has never arisen in this way. Only the will of the people, the will of people as members of this union, is the natural source of the state and its constitution; the national spirit evokes the state, as well as law, for it unites the members of the people in this will, in this desire to submit to the supreme power as an organ of law. 5 Therefore, the beginning of law lies outside the state in two respects: as flowing directly from God through revelation or the commandments of God, and as coming through the national will... The state presupposes law, but in turn serves as a necessary completion of the latter; they are both of supernatural and natural origin, they are based on the divine order and the will of man as a member of a nation. 6
Here are two radically different views on the source of positive law!
Declining the task of studying this issue in detail, we consider it sufficient to limit ourselves to the following remark. Philosophers of the first category do not exhaust the question of the deepest foundation of law; They do not go further than what the historical life of mankind already reveals: they consider the first movers of law to be reason, the individual’s desire for freedom and self-recognition, the internal desire for social improvement, etc., in fact, those means in human nature by which the idea of law and justice is revealed externally and realized. But this very idea, this initial and continuously operating mover, which calls for activity the above-mentioned means, is not created by man, but is already ready-made embedded in the being of man, is precisely the dowry of human nature, given to it by the Creator.
Therefore, in natural ways, the social system created and the law that regulates it in its deepest foundation has a power lying outside of man, namely God, who gives not only life to man and humanity, but also puts into him an indefinable desire to live precisely according to the laws of society.
The concept of law, which is very broad in scope, naturally allows for a very broad division into types and subtypes. In order not to fall into the danger of getting lost in these divisions, and also to successfully navigate in indicating the most important and essential types and types of it, we must first of all isolate from the concept of law a whole rather vast area of spiritual human life and activity, governed by those internally and subjectively recognized norms, which are often called moral law, moral law, or, in short, morality, morality. In essence and in their form they are so different from those norms that are predominantly called and thought under the name of law that they are often contrasted with one another and law and morality are considered as completely different concepts.
And indeed, it is not difficult to point out even external signs between them that sharply distinguish them. Thus, law has as its subject the activity of a person, his thoughts, intentions, desires are not subject to legal norms and legal assessment: de internis non judicat praetor; Gedanken sind zollfrei (thoughts are duty-free, i.e. everyone thinks what they want), on the contrary, the area of morality is primarily the internal sphere of human life. But this does not exclude the area of external actions from the sphere of morality. A person must first of all judge his own actions and the actions of others from a moral point of view. Consequently, the area of morality is only wider than the area of law. A clearer distinction between morality and law is provided by the source or basis for the norms or rules that are respected by the norms and rules of morality and the norms and rules of law.
The source and basis of the former is that internal law, which, according to the word of the Apostle, is written on hearts, the incorruptible voice of conscience; the basis and source of law is always generally recognized authority, or public power, expressing law in words, i.e. in laws, court decisions, administrative orders, or generally observed custom. This difference, in our opinion, is very characteristic. They fully explain the phenomenon that in moral judgments about human actions, everyone considers himself not only capable of being independent, but also considers himself competent: and this, of course, because every person is not deprived of this internal law.
Meanwhile, in the legal assessment of human actions, only a small part of people consider themselves competent and willingly pronounce their judgment: here is a matter for specialists, lawyers, and a person who is not a specialist not only admits with a clear conscience his ignorance of this law and his inability to make judgments of this kind, but is also reluctant to trust in the ability of others who boastfully present themselves as experts in this matter.
Quite a deep distinction, in essence, between moral and legal actions was expressed by Pukhta in his institutions. In his opinion, both moral and legal actions proceed from one common property of human nature - freedom, the ability of the human will to self-determinate, to decide on one or another action. But the application and use of freedom itself is profoundly different. As a free being, a person can make a choice from various decisions presented to him and exercises this opportunity externally, in his activity; this opportunity is his right. A person can discover how his right, how power and power is to determine himself to this or that decision both in relation to himself and in relation to other people and things. He can act with his life, with his abilities according to his freedom, he can treat his neighbors in one way or another, he can subject things to his rule and make of them this or that use.
Man has precisely such power, such potential: the only question now is how broadly this freedom appears to him from the outside, and right is, on the one hand, a limitation of this power, indicating, so to speak, its region outside, its limits, and on the other hand, providing its guarantee for its implementation in this region. There is no question here - whether a person uses his power well or badly, honestly or dishonestly; it is possible that another person would have used his abilities better, used things more wisely than this person. The right doesn't want to know this; it also provides the ability to use this power in other ways. For him, a person is only a subject of freedom, a person, and further qualitative assessment of this freedom is not his sphere. This is legal freedom. Moral freedom is a different matter. Here we are not talking in general about the application of freedom to activity, but about its application in a known or specific direction, namely in a person’s desire to be good in his actions.
A person is free here not because he determines himself to this or that decision, but because he already acts according to his internal laws, wants to be good, and fights the opposite desire for evil. No matter how successful or unsuccessful this struggle may be, a person remains morally free: evil overcomes him, he achieves little in the pursuit of good; his strength is so weak, and the circumstances are so unfavorable for the fight that he does more evil than good, even if he did not want it: nevertheless, he is morally free, for even in this state he still fights evil, and did not passively surrender to it, did not become its slave. Only slavery to sin, the cessation of the fight against evil in order to submit to it, makes a person morally unfree, evil, and immoral. But every action of a person is morally free, i.e.
located in this constant struggle with evil, in this constant possibility of choice - whether to go against evil and be good, or vice versa - to work for evil, is subject to qualitative moral assessment and can change in its value in an extremely diverse manner: it can be extremely moral when the highest heroism of self-sacrifice is discovered to overcome evil; can only barely be attributed to merit, as something that happened almost involuntarily, almost without a struggle, thanks exclusively to external conditions, favorably located, can be directly condemned as immoral, not revealing on the part of a person any desire to fight evil, even directly evil - as revealing a deliberate evasion from counteracting evil and a positive desire for the latter.
It is clear from this that law and morality in their relationships can be extremely diverse: an action that is legal or legally correct can at the same time be good: a person has used his freedom, his right to good, overcoming the possible evil use of his freedom; can be angry when, for example. disposed of his property or any thing contrary to its natural purpose (for example, the aimless destruction by the owner of useful animals, or torturing them for the purpose of enjoying the spectacle of their suffering; these are all the so-called unnatural vices and the most evil of this type of act is suicide).
It is clear from this that the area of morality is incomparably wider than law: it can penetrate the very area of it; at the same time, it is clear that the law of morality is more perfect than the law of law, therefore, one of the tasks of the latter is to be more consistent with morality, to help it, and the desire for individual members of society to be guided by the moral law in the sphere of their legal freedom 7 .
Bypassing this area of moral laws and moving into the area of law, here again we are amazed at the great variety of aspects of human life and activity that it embraces. Without exaggeration, we can say that there is no branch of human activity into which law does not penetrate; it watches over man and grows in the mass of its prescriptions as the sphere of human activity develops and expands. This is where the variety of types of law comes from.
First of all, objective law distinguishes, according to the objects of its definitions, two types of human relations: it distinguishes between public and private relations. As a social unit, man necessarily belongs to a certain nation, to a certain state, to a certain church or denomination; as a member of these societies, he must find a definition for himself in objective law, know what he is as a whole, what from him and what it can and should demand from him and what it must oblige him to, how he should treat, in particular, every other person, as a member of these same unions. This opens up a vast sphere of so-called public or public law. In relation to the whole, his task is to determine either the form of the social structure and the organization, and the relations of various institutions assigned to achieve social well-being, and those tasks that the historical destinies of this society and its present position in a number of other societies indicate to it.
The norms expressing this right are divided into organic laws, depicting the form of government, laws on institutions, law on public service; then, the laws defining the various aspects of the government department, what are the laws of administration, which determine the form and manner of issuing and publishing legislation, in the strict sense of the management or administration of the supervision or police, court, public property or finance, the laws of military, public education and religious denominations, and the statutes determining the position in the state and the internal organization of the various corporations and collegiate institutions conducting this or that branch of the public service.
With the widespread development of state life, with the widespread development of civilization, economic well-being, social development and the vastness of territorial, and diversity, and ethnographic numbers, the laws defining each of the above branches of government and service can be considered as a special type of public law of a given state. In relation to an individual member of society, the task of public law is to answer the question: what is it as a social unit in the whole society, what benefits can it receive from it through its state in it, what conditions will be required of it in order to remain its member, what grounds does the state consider sufficient to distinguish it from its members or subjects 8 .
The definition of these rights is partly found in the statement of the organic or fundamental laws of the state, in the laws defining general jurisdiction and criminal and police law, but mainly in the laws of states, depicting the rights and benefits - personal, property and public of the various classes of the state.
Thus, law defines that side of the human being by which man has been characterized since ancient times as a living social being: homo sociale animal. But serving the common good, on the one hand, does not exhaust the entire purpose of man: nature created him as an individual being, a personality; on the other hand, social well-being requires not an impersonal instrument, but precisely a physically, mentally and morally developed personality, if possible. Because of this, the greatest and most important part of a person’s efforts goes into developing this personality within himself, in order to prevent it from being lost in the mass and complex relationships and circumstances of life to the point of becoming an impersonal living figure, an automaton, in order to put the stamp of one’s personality on the things that serve it and, if possible, to pass on one’s personality and one’s acquisition to one’s descendants. A person also achieves this personal purpose, the realization of his personal interests, only through the relationship and mutual assistance of loved ones and others like himself, and through domination over things.
Law, which follows everywhere the activities and relationships of a person, is included in this area of his private life, private activities, private relationships and private purposes: the norms that it satisfies here are called private law. Let's see from what sides the law determines human activity here; Let us enter this area of human law for a while.
A person is subject to legal definition to the extent that he is a person. In contrast to a thing, a person is thought of as a subject with the ability of self-determination for activity. Only this side of the entire multifaceted being of man does law take into its domain, setting as its ultimate task the establishment of human relations face to face between various individuals. As a result, in order to find and determine the exact legal relationships between the complex relationships of people with each other, created by their most diverse circumstances, it is always necessary to carry out a very enhanced and thorough abstraction of all those circumstances that the actual relationship created.
Imagine, for example, two people, one of whom, having recovered from a long illness, in order to cover his expenses for treatment, to acquire the opportunity to begin his work again and to feed his large family, took from the other, whom in his best days he helped with labor and money, a certain amount of money at huge interest, and, being unable to pay it at the appointed time, was subject to recovery from the latter. What kind of abstraction must a judge, a judge, make in these relations in order to imagine this poor man, waiting for a reprieve as a mercy, and this rich man, lending his money, in order to thereby add a new thousand to his thousands - completely identical faces and their positions identical! Meanwhile, legally they are such, and the judge has no right to look at them differently. For him, they are not poor and rich, not hard-hearted and kind people, but only certain persons - debtor and creditor.
Law seeks to reduce the endless variety of individual characteristics of people to a few simple schematic and typical outlines, just as geometry decomposes the entire rich variety of bodies into elementary lines and figures. And just as the latter is limited to only one side of them - namely the surface, without penetrating into their substance, so the law has in mind only one property of a person: his desire and ability to be a social being, a member of society and specifically the given one.
It is natural, therefore, to expect that the legal definition of persons and their distribution into categories will in many ways completely differ from a person’s natural ability to be a physical and moral person, and may vary depending on the nature of the society to which he legally belongs.
The concepts of man and citizen are not only not homogeneous, they necessarily presuppose one another - but are often completely incomparable. The natural equality of people in considering the freedom and independence of some from others under the influence of legal relations often turns into the direct opposite of civil inequality. Quite often you can meet two people of the same age, upbringing, the same natural spiritual talents, but socially separated from one another by many steps and therefore as different from each other as the one standing at the bottom of the ladder is equal to the one standing on its top step.
This social difference is found both in the sphere of purely civil relations and in the sphere of political relations.
According to the basic idea of justice, all members of society, both individuals and citizens, should be the same and have equal rights: however, in reality, the implementation of this idea encounters insurmountable obstacles even in the most natural properties of people. Thus, full civil legal capacity requires adulthood: hence the legal division into civilly perfect minors. Further, there are many people, by nature or as a result of illness and a bad lifestyle, who do not have the necessary spiritual strength for the proper normal and reasonable determination of themselves for activity: naturally and rightly, therefore, the freedom of these persons is limited by the will of their guardians and trustees. There are persons who are subject to certain restrictions in their civil rights due to the fact that they have discovered dishonesty or even an inability to use the rights they have.
But even in addition to these more or less subjective conditions for diversity in the personal rights of citizens, almost all peoples have from time immemorial existed and recognized as the basis of civil inequality circumstances that lie outside the above-mentioned subjective properties of people. Thus, among many peoples there was a beginning of the distribution of civil rights based on the principle of caste distinction; but even among those whose political structure was formed on different principles, only the minority always enjoyed full civil rights, while the majority, if not completely depersonalized, then in any case did not have some essential properties in the civil personality that the minority had, and as a result represented a completely special kind of person. What a profound difference in civil status there was, for example, between our old noble landowner and his serf or slave! Meanwhile, this inequality is not yet maximum: among the civilized peoples of the ancient world, the difference in personal rights extended even further.
The Romans did not respect the slave at all as a person, but were included in the category of household property. The master’s children and his wife – their mother – stood a little higher during his lifetime 9 .
How is this inequality of persons expressed, constituting their civil status or condition in society?
In response to this, the right of each people indicates its own special circumstances. However, it is possible to indicate some aspects common to each right in this regard.
The difference in civil status comes down to the difference, firstly, in each person’s position in society as an individual, secondly, as a family member, and thirdly, as an owner. These three groups of legal relations exhaust the scope of civil and private law.
The first place here is the system of personal rights. We have defined the legal concept of a person as a subject of freedom, defined in a certain way, and as a subject of power, also of a certain size. To what objects is this free activity of a person directed?
During the existence of slavery and serfdom, the most important of the objects of personal rights was the right of self-determination, action on one’s own behalf, in short, the right to be a person. For a slave or serf was not recognized as such; his activity was that of a master; the insult inflicted on him did not apply to him personally, but to his master.
With the abolition of slavery as a fact, the legal conditions limiting personal rights remained only the above-mentioned subjective properties of people, by virtue of which they are excluded from the right to spontaneously undertake certain civil actions, such as, for example, acquiring and alienating their belongings, marrying, entering into obligations and conditions, trading, joining societies and companies. As can be seen from this listing, personal rights are defined only from the negative side: by listing those actions that a given person cannot perform. It is not surprising that the limitation of personal rights in this way sometimes reaches such a narrow minimum that the sum of the positive objects that make up all personal rights is exhausted by what nature has given to man and what he needs to maintain life. He has control over only what is in him and on him.
But on the other hand, the rights of full citizenship can elevate the individual to the degree of almost nothing beyond the unrestricted exercise of his freedom. This complete right of the individual is the ideal of law and civilization of cultural peoples, which in reality has hitherto remained the lot of a minority.
The objects of family law and property rights are more positive.
Family relationships, i.e. conjugal and related, by nature of their physical and moral properties, arise, as well as exist, apart from any right. Law is not the basis of the family; the latter existed long before law; in the same way, it is not the law that establishes the relationships actually formed between individuals, the seven and kinship components, respectively, their individual physical and moral properties. But the right to find oneself, so to speak, an opportunity to penetrate into these relations in the property of these individuals, according to which they are thought of as subjects of law, possessing certain rights. But in this capacity, every individual who wants, for example, to get married, is faced with an inexorable question: does he have the personal legal capacity to enter into such an important relationship for social life as marriage? Among the Romans, for whom marriage was a particularly strictly formulated law, this ability to enter into marriage even constituted one of the important personal rights of a Roman citizen.
Connubium - as this legal capacity was technically called - was precisely only the right of a Roman citizen: but a resident of the province and a colonist did not have it. There, a natural union with a woman, which was not entered into by a Roman citizen, was not called a legal marriage, a concubinate, or if it was called a matrimonium marriage, it was not legitimum and in any case did not have the same legal consequences that were accompanied by matrimonium legitimum.
The most private positive objects of law are for the husband - the wife, for the father and mother - the children: the first has certain rights and power over his wife - then, together with her, the right and power over the children.
It goes without saying that among different peoples and at different levels of society, the quantity and quality of these individual rights arising from family and kinship relationships are modified in very different ways: in general, family law, especially in combination with special property relations arising from a family union, forms perhaps the most important group in the general system of private law.
Another very extensive branch of private law is property law.
It is primarily a legal field; with it, as history testifies, the development of law among all peoples begins; with it, as history testifies, the development of law among all peoples begins; the positive objects of this right most strongly bring to life the idea of right. And this is very natural: for a person first of all discovers his activity on objects outside of himself that exist and provide him with benefit and pleasure or interfere with any intentions. This basic and elementary relationship of a person to the objects of the visible world, consisting either in assimilation of them, or in changing their given type (in destruction), or power over them, is the basis and essence of his property right. From the point of view of law, all the natural diversity of natural objects is covered by one of their properties - to be subordinate to a person to serve his needs, and they are all brought under one schematic concept of a thing (res). A thing is something that is unconditionally subordinate to a person and that has no purpose independent of this.
A person subjugates things and shows his power over them in different ways. This power, taken in itself and considered as it is naturally formed, is only actual, or simple possession or possession of a thing; but when it is recognized by law and recognized as belonging to this particular person: then it becomes the right to this thing or legal power. The difference between actual and legal possession in these consequences is that the actual is subject to chance: it continues with me until and as far as I am able to keep it in my direct possession, to protect, to defend it with my own means. Legal power is not subject to such an accident: once my right to a thing is recognized, my power over it is not destroyed or lost, even if the thing was actually in the possession of another. This legal power over a thing is called the right of ownership - proprietas.
In addition to the right of direct possession and transferring it into temporary possession to another, this right eo ipso also contains the power to demand a thing from anyone who anticipates from the owner, against his will, actual power over it.
We do not currently need to deal with this area of law, and we will limit ourselves to what we said about it before, stopping only a little at indicating some specific feature that the general legal concept of a person receives in this right of ownership.
Hitherto, when using this name, we necessarily assumed each time a living human individual as the only one capable of being a person. But the right of ownership sometimes creates such relations between individuals in which it is necessary to resort to the creation of fictitious persons, or simply fiction, and to give them the properties of natural persons. This is how this necessity manifests itself, for example, at the moment of transfer of property from a deceased person (for example, a father) to a living person, for example, a son. It may happen that the period of time from the death of the father until the son reaches adulthood will be very significant, meanwhile the property will consist of things that, in addition to their own value, can generate income. Naturally, the question arises here: who owns the property rights here?
It does not yet belong to the son, it does not yet belong to the son until he reaches adulthood; even more so for caregivers; the owner is no longer alive; Meanwhile, the interest of the heir himself and the nature of the property itself require certain legal actions that must be performed on behalf of a person. For such a person, the will of the testator or the inheritance is revered here: with the existence in ancient times of slavery and in our country - serfdom, relationships that were quite strange to a simple glance arose here: there were, for example, slaves or serfs, whose master was the inheritance; thus the real personality was the property of a fiction.
Similar personality properties are attached to some other abstract facts, for example, the goals of any public institution, charitable, educational or religious (such as almshouses, educational institutions, churches and chapels, etc.). Each of the institutions with one of these purposes has or may have personal rights in property terms, i.e. own property in one’s own name, enter into transactions, give obligations, and neither the persons managing these institutions nor those receiving benefits from them are considered owners. In the same way, individuals and individuals can form a similar institution with rights, forming a society; such as, for example, brotherhoods and monasteries, etc. The property made up of their donations to the benefit of the society they founded, from the moment of the donation ceases to be the property of each of them in particular, but becomes the property of the whole.
Such fictions, vested with the rights of persons, as opposed to natural or natural persons, are called legal entities.
Another small note about the concept of a person: in legal thinking, with particular rigor, one must always distinguish a person from a person, as a moral individuality clothed in a human body. In this capacity, personality rarely appears in the language of a lawyer. With the concept of face, only the side of the human personality is thought of, precisely because it manifests itself as a subject of self-determination, as a subject who has the freedom to determine himself to certain actions, or even inaction. This difference is especially important to keep in mind, firstly, to understand the distinction between people according to the so-called ability, also defined by private law. Not every person, as an individual, has the same legal capacity, which is also determined by private law. Not every person, as an individual, has the same legal capacity in the field of property law, but only those who have the capacity for self-determination.
The general conditions for this in most legislation are age or majority and a normal state of mental abilities; a child and a madman are everywhere and always limited in the application of property rights by the power of others - parents or guardians, and as persons stand under their authority - this is personae not sui juris, but personae juris alieni. This opens the second type of private law - rights to persons, but not to individuals, and the above remark is important in understanding these rights. This includes the rights of parents to the faces of their children, the rights of one of the spouses to the face of the other, and in a word, the so-called family law.
It is clear that humanity would not have gone far in its economic development if each, dominating only things, did not use the help and services of the other and vice versa. It is a necessary and most important condition for economic prosperity that people, individually distinguished by their talents, should provide mutual assistance. What good will it be for me if I, like the biblical rich man of the patriarchal era, count my small and large livestock in thousands and enter into no economic relations with them, so that these golden hands will also work for me. In a word, the same economic aspirations that force a person to acquire things encourage him to subordinate the personal forces of another to his power. This, however, is not the relationship of a master to a slave: that is the task of law, to prevent the nature of slavery and domination in these relationships, but to place this relationship or the right of one on the personal forces and actions of the other so that the relationship of person to person remains inviolable.
Not only that: the preservation of the personal freedom of everyone in such relations is required by law as a necessary and basic condition. Where it is violated, where there is a lack of complete personal self-determination on any of the parties in this relationship, all relationships are destroyed. The right of one to the actions or powers of another is obtained only from the mutual agreement of two free wills, mutually binding legally. Such relationships, transactions in legal language, constitute the essence of so-called contracts and obligations.
How can a contract establish the right of one to the powers of another, nevertheless preserving the relation of person to person between them?
The subject of the contract can only be a relationship between a person and a person who has a monetary, property, or valuable interest. When several people agree to help each other for mutual success in virtue, in art, in science, only with advice, example or their talents, then such a community of theirs is not yet an agreement. The main purpose of a civil contract is to establish the obligation and right to act of a person, and this action is objectified and receives material value: for example, two persons agree that one expresses consent, formally sealed, to deliver the other’s goods by a certain time within a specified period, and the other agrees to reward for this with a certain payment. Here, firstly, we see a precisely defined subject of the agreement: the movement of goods from one place to another within a specified period.
The fulfillment of this is connected with the valuable interest of each of the two persons: the first expects to receive a benefit from this, which it can translate into a general measure of value - a certain figure in money; the second means to receive a certain payment directly in money. Secondly, from the moment at which both these persons agreed, they entered into a strictly defined relationship: one became obliged to move the goods with its own means without any help from the other; the other has acquired the right to demand the performance of this action or the right to this action of the first. Thus, a relationship of obligation and right of claim arose between two persons. As for the obligation, its essence is clear, but what does this right to the action of another consist of? It does not consist in the fact that the first of these persons took control of the other with all his means of transporting goods: this would mean that one person completely subjugated the other person into his power: this would be a relationship of slavery, the contract does not authorize this.
But how will the right to act be exercised if the obligor does not perform this action? it will be realized by the fact that the one who did not perform it will be declared guilty and will be compensated with money in full for the damage that we cause by the action not performed. Thus, the debtor’s powers are transformed into a precisely defined value, and his very personality, as a person, remains inviolable for another private person.
So, the right of ownership can be divided into the following types: 1) real (to one’s own) and 2) someone else’s thing, 3) the right to the actions of another person. All these types of rights can be translated into money and, in any case, are legally considered as value. In this capacity, the entire set of property rights is called his property.
This is the division of law according to those relationships in human life and activity that it determines.
One of the principles of social and civil justice is the requirement that the law, as an exponent of law, be equally sacred, i.e. absolutely obligatory for all subjects, on the other hand, political prudence requires that all subjects be governed by the same laws, emanating from one generally recognized authority: for only under this condition is political unity achieved, and the whole edifice of the state retains its harmony and stability. However, in large, politically developed states, deviations from both of the above-mentioned principles are very often allowed. Thus, in states of different tribes and especially large territorial ones, there is a need to establish, along with national norms, special ones for some regions or parts of the national territory, determined by local characteristics.
Therefore, objective law, both public and private, according to the volume and space over which its power and significance extends, is divided into general and special law - jus generale and jus particulare. The same political interest often prompts, for example, in the form of attracting the best citizens to difficult public service or in the form of successfully completing it, to make exceptions from the common law (jus commune) in favor of individuals and classes and to grant them special benefits from general duties, or advantages in the enjoyment of certain rights. This circumstance serves as the basis for a special type of law: jus singulare as opposed to jus commune, or so-called privileges, i.e. private laws – privilegia = privata lex.
A necessary condition for the validity of the right to life is its accessibility to the general public, its recognizability by everyone, the external form under which it can appear as such. This form is either custom - more precisely, the well-known and long-term practical application of any provisions of the law, or a written law. The oldest original form under which objective law is revealed is custom. We have already had the opportunity to present an image of the process by which in a given society a well-known, definite rule acquires universal recognition and becomes necessary. “When the opinion that society is counting on a certain course of action, says Thon, reaches such strength and significance that such a course of action is required by society as a matter of course, when, further, such an opinion turns into a motive that is guided in activity, then the consciousness of necessity that has come here - opinio necessitatis turns custom into common law.”
Pukhta, who was the first to have the honor of a correct and deep assessment of the meaning of customary law, depicts its origin this way: “The first of the types of emergence of law is popular belief, as it is found in the minds of members of the people. The full manifestation of this conviction is that the members of the people act in accordance with it, recognize it through practice itself, through deed itself (durch die Uebung). This practice of individuals, based on a common belief, is evenly repeated in the same cases and receives the property of morality, custom, which is why the law that arose in this form was called customary law. The significance that such practice has in the emergence of law is determined for the most part in such a way that law comes from custom. But the true view consists in the opposite idea: practice is only the last moment in which the emerging law, living in the conviction of the members of the people, is manifested and embodied.
The influence produced by custom on belief lies only in the fact that the latter is brought to consciousness by custom and strengthened by it; therefore, if for example that legal view that for the transfer of property a single agreement between the previous owner and the new one is not enough, but a further act must take place, at least for example, the actual transfer of possession of a thing - if this view is expressed in a constantly repeated example, according to which in all cases a person who had only one agreement for himself was not yet considered the owner: then this example or custom can only contribute to the reliability and strength of the legal position, but it cannot be said that this provision arose from custom, which would not even have anything legal in itself if it were not already preceded by a legal position.” 10
Being the oldest, original form of law, custom has not ceased its legal significance in recent times; on the contrary, it lives constantly and in parallel with the laws or written law. At the same time, the relationship in which it becomes to the latter can be of three kinds: custom is established and operates or is completely in accordance with the law, that is, to put it simply, the law itself, due to frequent and long-term application, turns into custom: this is consuetudo secundum legem; or it appears as an addition to it, indicating, for example, the image of its application: this is consuetndo praeter legem; but a dissenting custom that contradicts the written law can also take root and operate: this is consuetudo contra legem. – The legal significance of a custom in the operation of written law is determined mainly by two of its properties: firstly, it must be a long-standing custom: longa consuetudo; secondly, it must express a reasonable and expedient rule - rationabilis consuetudo. Sometimes the law itself clearly defines in what cases custom must be guided.
Church law is a special genus in the general concept of law. – The purpose of the establishment of the Church and its purpose in the human race, as the basis of its original right.
The presented classification exhausts the entire sphere of civil relations, which in one way or another are more or less subject to the definitions of law, and can thereby become legal or juridical. But where is the place of church law in this classification? Should it be classified as public or private law? It is very difficult to answer this question. Those positive instructions that it presents to a person and by which it regulates the use of the rights given to them, have the nature of the rights of both: both public and private. The Church gives hierarchical and governmental powers to some of its members; these powers cannot in any way be attributed to the sphere of private law. But she also gives instructions for family law, she makes her own definitions, puts her stamp, modifies the nature of even property rights: therefore, some part of her law has the character of private law. Where is the way out of this difficulty?
It seems one of two things: either to admit that the Church itself is not able to convey any rights, and that what is issued under the name of church law is essentially state law, which only has as its content religious life, the relations of people arising from religion: in this case, the place of church law is in the general civil code, where it should be distributed among different departments of public and private law; or admit that church law is a law of a completely different order, incomparable with either public or private law, neither subordinated nor subordinated to either one, is a special kind of law. In this case, in the whole body of law, two major units are distinguished: secular and ecclesiastical law; the highest unit connecting both will be the common generic concept of law 11. Either way out of the presenting difficulty has data behind it. All pre-Christian antiquity speaks for the first.
For all the peoples of the ancient world, religious duties and rights were at the same time national duties and rights: Roman law very clearly characterized jus sacrum as public state law: publicum jus in sacris, in sacerdotibus, in magistratibus consistit 12. Even the revealed religion among the Jewish people did not separate its prescriptions from the sphere of national Jewish legislation: they were no different from the regulations of the public and private law of this nation and this strictly national state. Both the essence of the church and the entire subsequent history of law and the new civilization speak for the second way out.
The preaching of Christianity in the world and the founding of the Church in it were marked by a radical transformation of such ideas about the relationship of religion to the state and vice versa. Bluntschli characterizes this peculiarity of the relationship of the Christian religion to the state in the following way in comparison with the relations of previous state and national religions: “Christ did not teach religion, as it was prescribed by the Roman kingdom or the Jewish state. He was not a priest or preacher of the state religion, nor did he have any commission or authority (to do so) from the state. “I departed from God and came back: I came not for myself, but for her who sent me” (John 8:42). As My Father taught Me, these things I say (John 8:28).
“As a result of this, the Christian religion appeared independent of the state and even in contradiction with the religion that existed in the state, as a revelation of God and, despite contempt and persecution from the state, it spread its kingdom in the world. Its Founder himself was condemned as a state criminal for “blaspheming God.” Many of His disciples and followers paid with their lives for their opposition to the dominant state religion and, for the sake of the truth of their faith, tasted earthly death, full of the hope of eternal life for their souls.”
“From here two main provisions are revealed that give Christianity its greatest strength: 1) religion, since it is not a product of the state, is essentially independent of it; 2) religion fills man with the divine spirit and unites the immortal soul with God. Therefore, it is in no way any relation of human law, but in its essence belongs to the eternal and spiritual kingdom, about which Christ said that it is not of this world.” 13
The quoted words of a well-known authority of state science, in our opinion, quite clearly and definitely indicate the fundamental principles proclaimed and justified by the Founder of the Church and by herself, which produced a complete revolution in the hitherto dominant political and legal views and gave a completely new direction to the entire history of mankind. It took no more than three centuries for these new principles, under the influence of the spiritual influence of the persecuted and persecuted Church, to gain universal recognition, penetrate into the very lives of individuals and peoples, and victoriously begin to transform the law and policy of the entire world state.
So, to prove the independence of the Church from the state in forming its internal structure and therefore eo ipso its internal law, it is enough to say only that the Church, since there is a religious society - a society of followers of the Teacher of the true, revealed religion - in order to cause the recognition of its right to recognition by the state of its authority to develop and protect its own right, such a right that the state has neither a calling nor power to prescribe to this society.
Our immediate task is to explain and prove not the independence of the Church from the state, but the peculiarity of church law, therefore, its characteristic properties, due to which it is a special genus in the general concept of law and, as such, should be contrasted with civil (secular) law and considered and studied as a subject of special legal science. For this we must enter into the closest and most detailed consideration of the concept of the true Church of Christ.
First of all and most of all, we must pay attention to the purpose of the Church in order to more accurately understand both its true essence and the nature of its rights.
The most obvious and in its obviousness, it seems, never disputed goal of the Church of Christ, is religious education. The Church is the only teacher of true religion; she brings the light of religious truth wherever she appears. But how widely does this true light extend to human relationships? Is it limited in a strict sense to the sphere of religious knowledge—theology, or does this light of the Christian faith illuminate a person’s moral worldview and penetrate its relationships with others—personal, family, social, political? In resolving this issue, confessors of different Christian denominations already disagree among themselves. However, it is difficult to identify such a Christian religious society and even moral philosophers who would challenge the Church’s highest authority in the moral sphere. Thus, the Church is the teacher of religion and morality.
This appointment cannot be challenged, and since the implementation of this appointment requires a certain civil freedom, there is no rational justification for a state that would not provide her with this freedom, much less one that would put deliberate obstacles to this freedom.
Whether such a limitation on the religious and educational mission of the Church in humanity is right or wrong - this question does not matter for our purpose; Let's even assume that it is correct. More important than the other question is whether this mission alone exhausts the entire purpose, the entire purpose of the Church of Christ? It is necessary to ignore a good half of the Gospel history, the New Testament Scriptures, and Church history in order to so limit the purpose and purpose of the Church of Christ in the human race. Even a rough gaze, unenlightened by grace, saw and felt in Christ not only a teacher, but also a prophet and a doctor of incurable mental and physical illnesses; and sending his disciples to preach, He did not limit their mission only to educational activities; admonishing them, He instructed them like this: cleanse lepers, raise the dead, cast out demons - eat tuna, give tuna (Matthew 10:8). The Church is a source of light, and at the same time a source of other grace-filled gifts that are not received from those who are entrusted in the Church with giving them.
But these gifts, given to every person - no matter what nationality, social status, age, degree of moral development he is - are not the main goal of the Church; these are only means to another higher goal - the comprehensive rebirth of man so that he, reborn, puts on the new man, is restored to his original, God-created purity, as the image and likeness of God, and becomes worthy of eternal glory and bliss in the eternal kingdom of Christ. Here, in the salvation of man, is the ultimate goal of the Church of Christ.
This purpose, this ultimate goal of the Church is not limited either to a specific time or to any part of humanity: this goal is not assigned to it for any specific period, but until the end of the world; Its implementation is not limited to the Jewish people or any other people, but it embraces nations, humanity.
With such comprehensiveness, with such a universal nature of the purpose of the Church of Christ, is it possible to consider it in its external form only as a society of disciples and followers of Jesus Christ? The true Church of Christ has never been like that in its essence. The visible society of believers in Jesus Christ, for example, at the present moment, which seems so enormous in number that it surpasses each of the states, is at the same time the bearer of the God-created institution (divinum institutum) of the Church of God. The Church of Christ, only in appearance, is a visible society of believers in Christ, but in its internal character, in its essence, it is a Divine institution, as its Founder himself said: I will build my Church, and the gates of hell will not prevail against it (Matthew 16:18) - and in this, i.e. in its property as a Divine institution lies its main strength, and not in those great principles that philosophy, morality, and the science of law see in it, like those, for example, principles that Bluntschli saw.
As a Divine institution, the Church, represented visibly through the form of a religious society, is an institution as necessary in humanity as the state. It is not part of the state, it does not enter into its organism, like a corporation or like a private partnership, which receive their existence from the state, but it is the same complete whole in itself, standing separately from the state, like the state itself. True, visible isolation between them cannot be imagined: because every Christian, a member of it, is necessarily a subject of the state, no one can live outside the state, so in appearance the Church penetrates the state, and does not stand next to it; but this penetration is only apparent: the Church and the state, as institutions, are not penetrated by one another due to the fact that they both influence the same people; they only meet with their demands in the same person or in the same people, but each with its own kind of demands and each through this meeting does not change in its essence, i.e.
The Church does not become the state and the state the Church, but each remains unchanged in its essence. There are many relationships similar to this in life. One and the same person can be an active member of thirty unions or societies, therefore, stand in different aspects of his being, his activity in the closest relationship to each of these thirty societies: but this obviously does not in the least prevent each of these societies from remaining completely separate from each other and does not in the least oblige one to be imbued with the character of the other: a learned society, for example, does not turn into a charitable one and vice versa due to the fact that some, even all, members of the first are at the same time members of the second. It was from the moment the Church appeared in the world that it became commonplace that persons of different nationalities and states became confessors of the one Church, without losing their national and political affinity, and, conversely, persons of the same nationality became confessors of different religions.
It is as this divine institution that the Church of Christ becomes the source of rights that it is in vain for a person to look for anywhere else. For it was only to her, and not to any state, that the Lord, the Founder of the Church, gave this power. All authority has been given to Me in heaven and on earth: therefore go and teach all tongues to baptize them (Matthew 28:18): and the Apostles went into the world to teach the nations and seal them with baptism with such authority that they did not stop at any barriers erected by the secular government or the Jewish Sanhedrin. Of course, both a government official and an ordinary citizen can go and teach; but they will never have the consciousness of this power with which a person authorized by the Church teaches, and no one in this action of theirs recognizes their right: for how can someone who has not been sent for this teach? Christ did not grant this great authority to anyone except the Apostles: receive the Holy Spirit, and their sins will be forgiven, and their sins will be forgiven (John 20:22-23), except the Apostles. He gave no one except the Apostles the power to bring down the gifts of the Holy Spirit through the laying on of hands.
Simon the Magus also clearly saw this: for having seen that the Holy Spirit is given by the laying on of the hands of the apostles, bring them silver, saying: give me this power too (ἐξουσίαν ταύτην) so that if I lay my hand on him, he will receive the Holy Spirit. (Acts 8:18–19).
Is it possible, in view of such clear sayings of the Lord, in view of such a positive empowerment by Him of the builders of the Church with this great power, to deny the Church the character of a Divine institution, endowed with great powers that belong exclusively to Him? Truly, one must become blinder than Simon the Magus to dare to do this. But the Church was not created with such a character for a short time; she will remain such until the end of the world. It always preserves the succession of this power, which Simon wanted to buy for silver, the Holy Spirit always acts in it, Christ always abides with it, promoting it, or through it fulfilling the purpose of the Church - to bring all nations to Christ, to spread the true light in the world, to revive, renew, sanctify and save every person.
So, the Church, as an institution, is the source, first of all, of divine hierarchical powers - this is its divine right (Ius divinum). It is completely different from the right that the state gives its subjects, different in essence. No one except the Church can give it to a person. These are the well-known powers: teaching, priesthood and shepherding.
But the Church is a correct social organism: it has a certain structure: there are bishops, presbyters, deacons and other ministers, there are prophets, teachers, pastors, preachers; there is an order of monastics and sacred virgins; it contains the faithful who enjoy all the benefits of communion with the Church, its gifts, poured out directly to them and indirectly through its hierarchy; there is a class of catechumens, preparing for baptism and being enlightened, and finally, there is a class of those being corrected through precisely established penitential discipline. This entire diverse and unique composition of church people lives and acts in orderly order, gracefully and according to rank. He manages his life without resorting to the assistance of state power; The Church exercises its own right with its own means and can, as it has proven through three centuries of experience, protect it not only without assistance, but also with the energetic and desperate opposition of a powerful and educated state.
Is it possible after this to deny the Church’s internal strength, the ability to develop and protect its legislation of the organic structure, its public law? On the contrary, here is precisely the irrefutable proof of the falsity of the doctrine that claims that without a state there is no law; on the contrary, outside the state there can be and is divine law, church law.
The Christian religion penetrates deeply and comprehensively into the being of man; it, not like natural religions, is not limited only to commandments about pleasing the Divine, it does not only prescribe a cult, leaving other spiritual needs to the will of the people themselves, as natural religions do. It gives the deepest knowledge of the spiritual and sensory world, explains the structure of the world, man, the laws of social and state development; it contains an explanation of the most difficult questions of morality, a positive and clear disclosure of the secrets and tasks of human life, present and hereafter. Because of this, possessing a powerful spiritual influence over a person, with unshakable authority and dignity, she explains to him normal family and social relationships and prescribes the rules of discipline, energetically demanding that he fulfill them if he wants to be a member of it.
The Church specifically demands the fulfillment of its discipline and demands with such sincere and unshakable conviction in its rights and obligations this demand, with which God forbid that state officials and institutions make demands of state discipline on the subjects of the state. This consciousness of her right is based, on the one hand, on the clear commandment of the Apostle Paul: insist in time and untimely, rebuke, entreat with all longsuffering and teaching (2 Tim. 4:2), on the other hand, on the consciousness of the divine source and authority of the rules of her discipline: when, for example, she hears the voice of the Apostle Paul: “a wife shall not separate from her husband, and a husband shall not let his wife go” and the assurance of the Apostle: “I do not command (this) I, but the Lord” (1 Cor. 10:11): then will there be such an authority for her throughout the whole earth that would shake her confidence that this rule of hers is not a divine rule? Finally, the Church affirms the consciousness of its right to demand the fulfillment of the rules of its discipline on the clear commandment, command and measure of the Ap.
Paul: Christian brothers who do not fulfill this kind of requirement should be removed from their midst, stop all communication with them: look at such a brother as if he had ceased to be alive, had become dead in the living body of the Church. “And you will grow rich, and no more than a poster, so that the one who did this deed will be removed from among you. For now, even though he is not with you in body, he who is alive in spirit has already judged him who has done this, in the Name of our Lord Jesus Christ, who has gathered you and my spirit, with the power of our Lord Jesus Christ, to deliver him over to Satan for the destruction of the flesh, so that the spirit may be saved in the day of our Lord Jesus Christ. Your praise is not kind, don’t you know, as little kvass leaves the whole mixture. Cleanse away the old leaven, that there may be a new mixture (1 Cor. 5:2-7).” Is there need for even clearer evidence in favor of the fact that the discipline of the true Christ and Apostolic Church is disciplina correctiva et purgatoria, as the jurists express it, and that this discipline is its right?
Yes, it is impossible to imagine the relationship of a Christian, as a private individual, to the Church as based solely and exclusively on the principle of individual freedom of conscience, although the Church actually preaches and defends this principle. The Church does not forcibly attract into its society, or more precisely, does not accept into its living organism (body) a new member without a sincere desire to join this organism: here the principle of individual freedom of conscience operates with all its strength and unconditionally: but once, by his free will, a person has joined the church body, he should not oppose his assimilation to the church body: he must become completely like the other members; and the Church, for its part, uses all measures to integrate it, to bring it closer to its spiritual environment; if he does not succumb to these efforts, he is ejected by the Church, just as garbage incapable of being likened to it is ejected from a living organism.
In order to get a somewhat complete idea of both the overall character of the Church as an institution, and the diversity and breadth of the sphere of objects for which it has an internal, independent ability to determine law, we should pay attention to the modification of property rights that occurs from the moment it becomes the property of the Church. But perhaps they will object to this: can the right of the Church to property also be considered an essential necessary property of it as a divine institution? Is it possible, or at least in the world, convenient to talk about such a base subject as property for someone who has just portrayed the Church as such a spiritual institution, with such lofty moral tasks and aspirations? – In response to this hypocritical objection, we will limit ourselves to referring only to the following incident from the life of ancient skete monasticism: “one brother who came to Silouan, seeing that the brethren were working, said to the elder: do not do evil things that perish (John 6:7); Mary chose the good part (Luke 16:22).”
The elder ordered his disciple to take the newcomer to an empty room and give him a book. The ninth hour has come - the time of the monks' meal; my brother is waiting, they won’t call him to dinner. But there was a call. He went to the elder and said: “Didn’t the brothers eat?” “They ate,” answered the elder. - Why didn’t they call me? “You are a spiritual person, you have chosen the good part, reading all day, and you have no need for such food; but we, being carnal, want to eat and therefore work. The admonished brother asked the elder for forgiveness. Then Silouan said: So Mary also has need of Martha: for Mary also boasts because of Martha 14. – It was so in this monastery, and so it was in the whole Church.
The Gospel story about Judas is known that even during the earthly life of the Lord he was - if I may express it - the steward of the property belonging to the society of the disciples of Jesus. Then, on the first pages of the Apostolic History, we already meet with a whole institution - seven deacons, men filled with the Holy Spirit and wisdom - placed at the service of church economy. Here we encounter the news of the existence in the Apostolic Church of property so significant that it was enough for all the needy brethren. Truly, one cannot read this news without surprise; So unusual is the attitude of the owners towards their property, depicted here: “But the people who believed had one heart and soul: and not a single thing came from their estates that was their own, but they had all the same... but there was no great grace for all of them. For there was not a single beggar in them: for the Lord was in the village or in the house, selling the offerings to the price of those sold, and laying them at the feet of the Apostle: having been given to anyone, if anyone asked for it.
Josiah, who was named Barnabas of the Apostles, who is, so to speak, the son of consolation, a Levite, a Cyprian by birth, having a village, sold, brought the price and laid it before the feet of the Apostle” (Acts 4:32-37). Much could be cited of this kind of news from the Apostolic history and the history of the Church of subsequent times, news representing the Church as the possessor and proprietor of property, compiled in the same way and serving the same purpose: but these are enough: they are so typical to see what internal motive prompts Christian owners to treat their property rights so diligently, which jus civile so diligently guarantees. This motive is love for neighbors, especially those who suffer (hungry, thirsty, strange, imprisoned), warmed and excited by the love of the Son of God, who is not ashamed to call them his brothers: since you have made one of these least of my brethren, you have made me together (Matthew 25:40).
Perhaps our ears are too accustomed to hearing this word of the Lord, who loved his beings to the end, that we remain deaf and blind to the crowds of the pitiful proletariat, who upset with their ugly appearance all our good nature, which has so many chances for its peace of mind on their account in these tedious and gratuitous meetings of ours in various charitable institutions and membership activities on committees about the poor, and therefore we do not notice that in hard-heartedness towards our truly lesser brethren far ahead of the proud Roman citizen. But imagine a person who heard these words for the first time and accepted them with all the clarity of consciousness of their power, with full faith in the Lord who spoke them, and then Zacchaeus will be completely understandable in his determination: Behold, the half of my property, Lord, will I give to the poor.
Josiah is understandable, selling his village and laying its price at the feet of the Apostles; all the subsequent sacrifices of such donors to and from the church are understandable; those offerings of the best firstfruits from the fruits of their labors, which were accumulated with such abundance in the ancient Church, are understandable; the poor old woman is gathering her last strength to bring her labor linen as a gift to the Church, laying it at the feet not of the Apostles, but their successors - which we see to this day.
Yes, with the advent of the Church of Christ, a new type of property arose - church property, a new type of wealth - the wealth of the poor: for “church wealth is the wealth of the poor”: new rights in property arose; new legal relations arose, new documents appeared certifying the bearer’s right to be content with public property (the so-called peace documents given to poor wanderers). New church legislation on property appeared. And civil law little by little recognized his decisions, recognized new subjects of law, new definitions of the value of things, and at the present time, for example, our civil and criminal codes without any hesitation borrow the definitions of this law 16.
Is it possible, in view of these facts, to deny the Church the legal capacity to give things (property) their purpose, to determine the method and extent of their use and alienation, and to do this from its own unique point of view, guided by its own moral and economic views, completely regardless of what views on this subject the civil legislator of this or that era, of this or that state holds? At the very least, the members of the Church themselves, the owners themselves, who alienate their property to the Church, relinquish all their rights to it and unconditionally obey the instructions of the Church that it has developed, and do not in the least doubt the legal capacity of the Church to dispose of any property at its own discretion. Moreover, does the external jus civile have the right to deny the Church this legal capacity? Does the state also have the right to deny it to the Church? The Christian government of Byzantium fully recognized this legal capacity of the Church.
Western Christian states too; our Russian state too. Only in modern times have voices begun to be heard here and there: should church and monastery property be subjected to the control and management of the state? Shouldn't we introduce general state regulation into both the property and income of the Church? Shouldn’t we also transform the way of using and using church income and property according to civil norms (for example, assign salaries to clergy, introduce state taxes for corrections, etc.)? Of course, why not do this: but will it be fair? Wouldn’t this be an obvious and sharp violation of the principle of civil law, according to which a citizen, by private law, can act according to his complete will, and therefore alienate it from himself to anyone? Wouldn't this principle then be violated both in relation to the person who alienates his property in favor of the Church, and in relation to the Church to which the alienated own right was transferred?
What answer will that state or civil legislation give, which would, for example, deprive clergy of the right to income made up of the voluntary offerings of parishioners - a response to the Church’s statement that this right of clergy is a divine right: “for the law of God has decreed that those who serve the altar should eat from the altar” (Apostle pr. 41)?
So, the Church of Christ, catholic and apostolic, in its property of the Divine Establishment, apparently appearing as a religious society or a set of religious societies, has perfect legal capacity and an essential need to protect and develop its special right. From considering only its essence, purpose and purpose in the human race, one can already discern at least the general content and general principles of its public law, its discipline and its property law. A historical study of the monuments (sources) of this right will completely justify this a priori discretion. This is the divine right of the Church, always remaining unchanged in its principles, is a special genus in the general concept of law, and the most suitable artificial term to designate it in comparison with the law produced by the state is, in our opinion, jus canonicum.
Actually, church law - jus canonicum, is an unchangeable affiliation of the Church, a postulate of its earthly existence. The more separate it is from jus civile, the better. Interpretation of it, carried out under the influence of legal doctrines, depersonalization of it, smoothing out its generic, individual properties and forms with the intention of bringing it closer to the properties and forms of current civil law, instead of harmony between the Church and the state, will lead to a mutual distortion of the essence of both, and instead of strengthening the beneficial influence of the Church on the state and the morals of its subjects, it will completely paralyze its power. No, the Church of Christ was not created to serve states, but for the benefit of the human race; it is not confined within narrow national or political boundaries, but is appointed to act here and there, in states and peoples.
Like a ship sailing on a vast ocean, enclosed within itself, equipped, equipped, having many passengers, steered by a skilful helmsman, firmly and faithfully guiding the ship to one pier, despite the heaving waves, the Church of Christ lives in this world in continuous movement. In contact with peoples and states, she accepts into her ship more and more followers. Representatives of what nationalities are not on her ship! But all of them, having entered the ship, are related to each other: there is no disagreement between them regarding the direction of navigation: for Christ himself rules and the helm of His rule is that divine law that is clear and close to every member of the Church of Christ: this is the Divine Scripture and the dogmas and rules of ecumenical and local councils.
This is at least the view of Christ’s Orthodox Russian Church, expressed in the following words of its body of canon law - the Helmsman’s Book: “Just as in the navigating art of the sensory world, more than anything else that floats, it is most necessary for those who swim to be fed, so it is by this that those who float are most saved, by the nurturing of the graceful artist: in the here and now of this world, in the navigating art of the divine scriptures more than those sailing on ships, but in the Church of Christ it is most necessary and necessary to eat food, that is, divine dogmas: the Apostle and the holy father of the seven saints, the father of the seven ecumenical councils and nine local traditions, even there are proposed rules in this book, by them they are also instructing and saving all those floating in the sea of this life, nourishing true artists, I like shepherds and teachers and swim comfortably and easily, while the abysses and twists are disturbed by unclean spirits, even as there are all sorts of passions in us raised from them, both spiritual and physical, and are transferred to a quiet and calm haven - the eternal bliss of the heavenly Jerusalem.
For this reason, this divine book, due to its dangerous art and the intelligence we gain in it, has been gracefully and worthily given the name of the helmsman.” 17 The entire Eastern Orthodox Church holds the same view of its position in the world and the purpose of its canon law, as can be verified from the first pages of its helmsman’s book or pedalion. 18
But the spiritual and moral organism of the Church appears externally, as a religious society, or as a federation of many societies. It is not surprising that some of these societies, under the influence of their national properties or under the influence of their political position in the state and in their religious communion, will introduce some special features and thereby distinguish themselves from other societies that are united with them in ecclesiastical terms: on the contrary, it is very natural and absolutely necessary that the essentially united Church of Christ, Apostolic and Catholic, in its historical life appears as an aggregate of not only local, but also national local churches, even local state churches. What gives individual ecclesiastical societies or parts of the Universal Church a local (and temporary) national or state imprint are the public and private rights granted to it by the state.
Looking at the confessor of the Church of Christ with its own eyes, from its point of view, the state can give church institutions, for example, the character of public corporations, endow the ministers of the Church with the rights of officials of its civil service, ensure the execution of its laws, its administrative measures and its judicial verdicts as a guarantee of its state power; can give its institutions that own property the rights of legal entities, bestow them with benefits and privileges, etc. The Church has no reason to refuse such a grant from the state: this favorable attitude towards it by the state authorities, on the contrary, is desirable for it and only facilitates the success of its divine mission in humanity. The fear that, having acquired these worldly and state privileges, the Church will lose its spiritual, moral and independent character and will turn into a “church-state” is a vain fear.
An educational or scientific institution in no way ceases to be such in its essence because the state power imparts to it the properties and privileges of a state institution, its superiors and teachers bestow the rights and honor of its state officials: all the more so must this be said about the Church, which has within itself so much inner spirit and strength that these external privileges, this, so to speak, the outer shell and decoration of its ship, are never able to distort its true character.
Nevertheless, these external rights of local churches, which serve as exponents of the relations of certain states towards them, impose on them some sometimes rather sharp features of difference from one to another. These differences naturally constitute special, local church law: although this law is ecclesiastical, because it belongs to the Church, it is significantly different from general church law, as it comes not from the Church itself, but from the state and does not have such stability and constancy as the first, but is subject to accidents, fluctuations, and changes.
As a result, the law of each local church at any given moment is composed of two main parts: general church or canon law and state and civil law, and is contained in canons and laws or in the nomocanon.
This is how the essence and character of church law is determined theoretically - from consideration of the essence of the Church itself. To what extent European public policy, legislation, legal science have recognized and recognize this position of the Church among the state and in the state - this will be clear from the brief historical outline of the relations between the Church and the state from the founding of the Church to the present time.
§ 3. 19 The position of the Church in the state and the mutual relationship between them
Church and state in the first three centuries after the birth of Christ; reform of St. Equal to the Apostles Constantine the Great. Church among the Germanic peoples. The superiority of the Church over the state in the Middle Ages. A gradual increase in state power - and dominance over the Church. Kirchenhoheit. Police state. Gallicanism. The latest theories.
Establishing His Church in the human race for all times, the Lord did not teach His disciples any ready-made system of principles determining the attitude of the Church to state power. He commanded his disciples to give preference to the soul over the body, to prefer the fear of God to the fear of man, while showing sincere respect for the form of government existing at that time. In fulfilling His messianic calling, He himself acted freely, commanded His Apostles to continue His work in His spirit, and predicted that they would not be protected, but followed, by the secular authorities.
Deprived of the help of the state, even prohibited by the laws of the Roman kingdom that dominated the world, the Church during the first centuries spread, however, continuously and calmly. The apostles and their followers fully recognized the existing authorities, they themselves obeyed their orders and taught their followers the same, demanding from them prayers for the king and the authorities, they used state institutions both in the interests of the Church and in their own; but at the same time they affirmed with word and scripture the superiority of the word of God over the commandments of men, freedom of conscience, faith, preaching, worship of God and all Christian life.
But according to the laws of the Roman state, the Christian religion was only tolerated as a Jewish sect and was forbidden to acquire followers outside the Jewish people; later, Christianity began to tolerate the hatred towards itself on the part of the Romans, which they had towards the Jews, and began to be considered a dangerous state, a superstition hostile to humanity, even outright atheism and magic. From the point of view of public law, the Church was subject to condemnation as a secret society, but Christians, as private individuals, on the basis of Roman legislation on private societies, could exercise the rights of permitted colleges, especially societies that owned tombs for the burial of their fellow members. In this capacity, private churches could acquire property, but the Christian religion itself - both after and before this - remained prohibited and always suffered severe persecution. But to the hostility of state power against the demands of Christianity, the answer of Christians is always the same - suffering.
The significance of Constantine the Great lies in the fact that his conversion to Christianity (812) was not limited to his person and his family, but Christianity was officially recognized by him, even elevated to the level of a state religion, so that in the future the persecution of the Christian religion even became a political impossibility. At the same time, the emperors could not do without exerting on their part the patronage of the Christian religion, such as the Caesars provided to paganism, transferring the privileges of the pagan religion to the Catholic Church as a state religion and guaranteeing the implementation of church laws - be they laws of faith or discipline - by state power as if they were sanctioned state laws.
Christianity became the dominant religion, and paganism, as well as heresy, began to be considered a state crime.
But at the same time, the emperors did not always resist the temptation to manage at their own discretion not only external, but even internal, concerning faith, affairs of the church, which they considered a state institution. Loud voices were heard against such a takeover - the so-called Byzantineism - preferring the former internal freedom under external persecution to the current kingdom of an unfree church. The popes didn't go that far; they did not strive for a complete separation of church and state, they left the government to take an interest in church affairs, but did not forget to remind the emperors that in spiritual matters they themselves must submit to the highest authority and must establish their activities according to the norm of divine and church commandments. Therefore, emperors have a duty to help the church, but not the right to give it laws.
The nation that began to take first place among the peoples of Western Europe at the end of the 5th century - the Germans, divided into many tribes, owed gratitude to the church not only for their faith, but also for their civilization. The authority of the church was rooted in the spiritual superiority of the culture it patronized; in the religious consciousness of peoples, she was revered as supernatural and divine. The Church must be strong, its ministers must be honorable and rich, its orders must be carried out by secular authorities. Individual principalities of the Germans grew into Christian wholes. The Pope was revered by all Catholic princes as the head of the entire church.
In the Visigothic as in the Merovingian states, that internal brotherhood of secular and ecclesiastical power already arose early, as a result of which one, supporting the other, pursued the same path, the path that the church shows and the prince builds. The king took an active part in the convening and opening of councils, in the installation of bishops; In Spain, he even considered the latter as his right very early on. In France, bishops and abbots received important political influence, were a state class, bore its burdens, protected land estates from masters, took them away and returned them to their owners again. In Carolingian times, feudalism strengthened and had its influence on strengthening the position of new prelates in the state through the oath of allegiance to the king.
The former law of the political structure, that at the same meeting church and secular affairs were considered and decided, and controversial issues in the field of church law were decided by a court composed of clergy and secular persons, soon gave way to the separation of church litigation from the jurisdiction of secular authorities. The king published the definitions of the councils as his own decrees (capitularii); he himself and his officials aided and assisted the bishops in the exercise of their jurisdiction. The bishop served the state with his advice, his supervision and his court, but the installation of bishops in the Frankish and German states was never the ecclesiastical right of kings. – The position that a cleric cannot be judged by a layman gradually, especially thanks to Pseudoisidor, acquired the character of an axiom.
Even the strong Ostrogoth Theodoric did not dare to judge the Pope, although he was an Arian, and could not do anything against the solemn elimination of worldly power from any interference in spiritual and even in ecclesiastical affairs of a material nature. The Byzantine emperors lost all political influence over Italian relations when the pope, head of the wealth-rich Roman Church, appeared as their guardian. With the ousting and final defeat of the Lombards and the abdication of the victorious Franks from the Carolingian house from the administration of Roman land, the independence, although not yet the sovereignty of the Pope in the area of the donated Roman church, was recognized by itself. Political and religious considerations combined to ensure that the Carolingians stood in special proximity to the apostolic see and encouraged them not only to strengthen the power of the pope in Italy, but also to patronize and carry out the reform of the church in France and its organization in Germany in the spirit of internal unity of all churches with Rome.
It is the duty of a Christian prince to defend the Church. Charles Martel was also a Roman patrician, as was Pepin the Less; Charlemagne declared himself emperor of the Roman Empire and, in this capacity, was crowned by Pope Leo III on the day of the Nativity of Christ 800. The idea of this emperorship was to establish and maintain the unity of the kingdom of Christ on earth. All peoples must form a great family, a society that must embrace all Catholics so that in Christianity as a whole, the pope is the spiritual head, and the emperor is the secular. The emperor and the pope owe mutual loyalty; the pope stands under the special protection of the emperor; he is a defender of the law; he was not a vassal of the pope, but he was the first minister of the Church, called to defend the cause of Christianity; not to rule the Church, but to supply it with his strong help. The Middle Ages honored the fight against infidels and knew no tolerance. He who does not live in union with the Church has no legal position in the secular kingdom; on the contrary, the enemies of the kingdom are also the enemies of the Church.
The danger that the emperorship would become a universal monarchy dominating the world, very close under Charlemagne and Otto, was recognized and prevented by the popes.
That the court clergy, in many respects dependent on secular power, did not feel any need to hold high church freedom is understandable. But the Frankish reformation party was also unable to contain the advancing decline of the church. The close connection of political advantages (immunities) with church service resulted, on the one hand, in a wider and wider worldliness that embraced the church, and on the other, oppression of it by the Vogts, who declared themselves masters, both in great and in small things. Gregory VII, thanks to his strict character, victoriously carried out the reform of the Church and its liberation from secular power, despite the opposition of many contemporaries, and ensured the later complete victory of the papacy.
The guiding ideas of his system were the following: 1) freedom of the Church: worldly investiture, which gives scope to simony, is a completely illegal phenomenon; the replacement of the papal and episcopal thrones must be carried out strictly canonically; 2) full provision of the actually already existing advantages of the Church and individual church institutions, mainly exemplars and immunity of the clergy, which the layman has no right to judge; 3) the subordination of secular princes to the court of the Church, as a consequence of the spiritual supremacy (Superioritat) of the Church over its incomparably lower state institutions.
Everyone agreed then that the Church had an advantage over the state in principle: even the emperor considered himself obliged to perform knightly service to his master. But there was far from such agreement in determining the moral dignity of the state, which was often considered only a requirement of bitter necessity, even an institution that arose as a result of the seduction of the devil. The absolutism of state powers, strictly speaking, was alien to medieval views, precisely because they were free from the influence of Roman law; the prince received his power from the people, the general will which was often considered the source of his power. But the prince was in revenge with that - the prince by God's grace, to the extent that he had to act in his own right and protect justice in the name of God and following His commandments. Here is the basis of why secular laws are mandatory and require obedience not only for fear, but also for conscience. Somewhat later they tried to more precisely theoretically determine the nature of princely power.
At its core, it is of divine origin: this is certain; but in explaining the way in which it is achieved by the sovereign, there was sharp disagreement: according to one view (of the Welfs), it is like this - through its origin from the power given to Peter, through the communication of the sword to the princes by the pope; according to another, the so-called Ghibelline view, princely power in itself is directly divine, and the prince has a sword from God through his choice or generally through the legal receipt of the principality, and not through the pope or from the pope.
But since the question of the origin of secular power was already raised from a religious point of view, the elevation of church power in political affairs was a necessary sequence. If the Church is generally recognized as the defender of religion and morals, then she cannot recognize the division and schism of the supernatural power given to her by Christ, she firmly protects the unity of this power, and from this the conclusion follows that Peter received power not only over all people, but also in all respects, that although the pope has always given and continues to give this secular sword to princes, however, in the interests of unity and order, he always retains the right to both oversee and direct the use of this sword. But regardless of these more theoretical considerations, the power of the Church at the highest point of its development in the XII-XIII centuries. was virtually universal.
True, the ancient principle that secular laws have no meaning in ecclesiastical affairs has de facto been limited, since the Church itself has adopted some of the definitions of secular, especially Roman law, which resulted in the approval of many essentially purely secular laws, especially after the Church significantly expanded the range of cases subject to its jurisdiction. But if the church generally applied the scope of Christian morality to individual secular laws and princely events, then it was a very common occurrence that in countless cases the church side was questioned and denied, along with moral goodness, the legal significance and binding nature of state acts. During this time, the Apostolic See served as the supreme Areopagus of princes and peoples, and in resolving controversial issues that arose it saw not so much the application of its conciliatory mediation powers, but rather the outpouring of its own, the supreme pastoral power given to Peter.
If the pope, in the beliefs of the peoples, fully and freely exercised the right to dispense with an oath, then it could easily happen that in this case he permitted his subjects and vassals from that relationship to princes and masters, which rested on the oath of personal allegiance, and from here there was only a step left until the voluntary abdication of the prince. – If, finally, we pay attention to the very long series of lands that were not under the authority of the Roman emperor, but directly under the authority of the Pope of Rome and taxes were paid to him, then it is hardly possible to imagine a further expansion of church power, compared to what it already had in reality. There could hardly be any talk about state independence, and if recognition of it was sometimes expressed, then this statement was of a highly theoretical nature in order to attract any attention.
The spontaneity of the relationship between state and church, based on a feeling of mutual respect and assistance, has suffered no little from the cold scholastic study of later times. Adherents of both systems have forgotten that nothing harms the cause being defended more than immeasurable exaggeration. The absolutism of the power of the Pope was exposed as a dogma, the Constantinian grant served as a document from which the justification of papal world domination was derived; comparisons of church and state with soul and body, heaven and earth, sun and moon were in full swing; scholastic bad taste was carried away by calculations based on these comparisons, how much greater church power is than the power of the state 20. The idea of emperorship fell in respect especially from school disputes. While some tried to call to life the pagan absolute Roman imperial power in place of the Christian one, and it was from it that they derived the right to rule over the whole world, others saw in the emperorship only a gift, a concession on the part of the Church.
They argued about whether the coronation of 800 was a transfer of divine power or a simple renovation, a renewal of the former imperial power? has it become the privilege of the German nation? Was the right of free choice of the German king guaranteed, and for the Papof only the right to evaluate and approve the choice, or the right to choose electors also of papal origin? Did they argue about the moment in time at which imperial power is obtained, about the nature of anointing and coronation, about the right of the pope to excommunicate the emperor only for known reasons or without reason? They argued about the attitude towards Italy and the right to appoint an imperial vicar. The coronations of emperors became less frequent, travel to Rome became a burden, the ancient splendor of the majestic empire faded... In fact and legally, the emperor retreated into the background; Only the pope appeared to the Catholic world as the sole head of Christianity.
The dispute over the boundaries between the state and the church in the Middle Ages was so widespread that there was no country in which the ecclesiastical and secular authorities would not begin to measure their strength again and again, in greater or lesser struggle. Often the matter was about protecting church law, and even more often about acquiring church benefits. Rarely did an individual dispute end in a decisive victory: usually it only aroused the need for final calm in concluding a concordat, an agreement. During the religious unrest, Germany suffered the most. The weak rule of Louis of Bavaria, who pinned all his hopes on the struggle with literary forces, gave rise to the position of the German kingdom, contrary to the claims of the popes who were in French captivity (1305–1376), to be determined in the declaration of the Electoral Union in Renze (1338) and in the Golden Bull (1356).
The assertion of Louis's adherents: all ecclesiastical and papal authority comes from the emperor - forms the direct opposite of the teaching of curial writers; at the same time, just along with the emperorship, the papacy fell in public opinion, and the spiritual punishments of the popes, like the antipopes (1378–1448), lost their former terrible effect.
Roman law, lovingly cherished by the church itself, turned into a powerful weapon in the struggle against church advantages, which led to the formation of independent territorial possessions. Cities often closed their gates to the privileged clergy. The kingdom of France limited the application of ecclesiastical jurisdiction; The basic principles of the right of state majesty in relation to the church gradually developed. The power of the state increased; As it flourished, the following arose: placet, appeal from church judicial institutions to secular ones, the prohibition of church censorship, laws of depreciation. At the end of the 15th century. no one any longer thought that state power came through the pope. The religious point of view gave way to the political. – Added to this was hostility against the clergy, which now, with the invasion of humanism and the unbridled sectarian spirit, turned into hatred against the church, even often into contempt for the Christian religion itself.
With the state legal recognition of Protestantism and specifically the Augsburg Confession in the religious world in Passau 1552 and Augsburg 1555 and then the Reformed Confession in the Peace of Westphalia in 1648, the idea that underlay the Holy Roman Empire, the defense of the Catholic religion and the Church in every way, received a mortal blow. The protest of Pope Innocent X had as little significance in this regard as it could not change anything in the unilateral state order regarding church institutions and property. The Kingdom of Germany reduced the advocacy of the Catholic Church, left in the electoral capitulations, to a mere title, to a meaningless form.
The strengthened national self-consciousness of politically united France energetically removed any, even indirect, power of the church in secular, i.e., in political affairs. Gallicanism represented a remarkable mixture of the feeling of ecclesiastical freedom and state absolutism; he was sick with an unmoral hatred of the strong papal power and submission to the regulations of the state in church matters. Parliament assigned to public administration the right of supervision (droit de surveillance) and active participation (droit de l’influence). In particular, ecclesiastical jurisdiction was limited, royal approval (placet, pareatis) was made mandatory for the admission of a papal nuncio, for the adoption of papal dispositions, for the publication of ecclesiastical laws, for the filling of higher positions, for the removal of prelates from the country; finally, an appeal from spiritual judges to the general state court (appel comme d'abus) was established.
The formation of absolute princely power in other states led to similar events. The Kingdom of Spain in the Inquisition had a churchly recognized means of bringing, under the pretext of zeal for the purity of faith, not only the laity, but also noble prelates to unconditional obedience to the state.
In Germany, the development of both the police state and the supreme state law in relation to the church was greatly facilitated by the scientific study of state-church Protestant law. According to the episcopal system, the jurisdiction of bishops over Protestants by state laws was abolished and transferred to the Landherrs (local sovereigns), and thus a local state high bishopric arose. According to the territorial system, the management of religious and church affairs was part of the essence of the ecclesiastical rights of the local sovereign; - according to the less influential collegial system, the supreme right in relation to the church was contained in the foundations of church power (jura sacrorum), transferred from the community to the prince. The Catholic princes, in discussing their rights as local sovereigns in relation to the affairs of their confession (jure majestatica circa sacra), in no way wanted to stand behind and below the Protestant princes, and relied on their supreme power over the territory.
At the same time, the state right to protect religion, which arose from the ancient state duty of protection, was completely distorted; it began to be interpreted as state management of church relations and as the protection of citizens against church events.
Gallicanism, which had a deep influence on the minds and glorification of the ancient church and its rights, became widespread in Belgium and Germany through the fan of Espen and was transformed by Nicholas Gontheim into the so-called Febronianism. Febronius went further than the now indicated theories of state law lawyers; since he put forward the demand that princes should, with their public official authority, change the structure of the Church itself determined by laws; his system carried the germ of death within itself, since it deprived Gallicanism of the vital principle - the national idea. His creation provided state canonists with only favorable justification for the provisions of their doctrines, equipped with historical erudition.
So, the state absolutely cannot tolerate anything independent on its territory; the latter would be a “state within states.” The police power of the state has the task of protecting the welfare of the state in every way. At the same time, the following axiom is important for her: the state good absolutely cannot be harmed by true religion, a fair church norm, or a godly way of acting. If now in one respect or another an actual deviation is noticed, it is the right, as well as the duty of the sovereign, to correct the necessary, without being embarrassed by the appearance of religious doubt. Christianity and the Church are created for a public purpose, they should exist and flourish as important means of police.
– In particular, the concept of supreme law in relation to the church (Kirchenhoheit) includes: 1) the full operation of state law in all respects regarding church institutions and persons within the state: the state takes away or grants immunity, conducts trial according to its laws; The power of the church does not extend to the state, namely to the external region; the supreme property (dominium eminens) in church property belongs to the state, from which derives its right not only to taxes, but also to administer and even secularize. 2) The right to take the necessary preliminary measures to prevent, if possible, damage to state interests caused by church bodies (jus cavendi).
True supreme supervision requires that every ecclesiastical decree be pre-approved, for every ecclesiastical event it is permissible to submit a request to the state for assistance as a guarantee of right (appellatio ab abusu), intercourse with foreigners must be supervised and limited, regulations must be drawn up for monasteries, holidays and ceremonies established, by issuing depreciation laws put an obstacle to the increase of wealth through the inheritance of the property of deceased private individuals, when decreeing church officials, the government has the right to make exceptions from the list. candidates. 3) The state provides its special protection for the church and exercises this right (jus protectionis, erroneously advocatiae) through its institutions, church councils, consistories, etc.
p.; Church institutions must be content only with the privileges granted to minors; alienation of Church property is not valid; violation of proper veneration of God and the Church is prohibited by state laws; faith and morality are obligatory, but at the same time they are cleared of some superstitions, creeping abuses are eliminated, and the execution of church laws by the subjects is entrusted to the prelates. 4) Finally, the state’s job in general is to protect the specific religion of its subjects. The idea of freedom of conscience of an individual is alien to the state law of an absolute state: there is no right to non-confessionalism and irreligion. The right of reformation (jus reformandi) acquired by the Protestant princes, which served solely to explain the violent act they committed, cannot be granted to the Catholic princes; Partisan Protestants considered even measures related to the administration of the affairs of the religion professed by the subjects of their territory to be a violation of the law on their part.
But the state can also allow adherents of a hitherto not permitted or directly prohibited religion to reside in the country, profess their faith, worship at home with permission to perform their rites of a private (devotio domestica qualificata) and public nature (religionis exercitium publicum). In this way, the state can tolerate and recognize new religious societies, giving them a position either inferior to the dominant religion in their country (ecclesia dominans), or equal to it (parität der Kirchen).
Gallicanism, like Febronianism, was rejected by the papal throne and aroused many strong refutations from a theological and historical point of view. The state church theory was refuted from the point of view of natural law and with even better results - from the political point of view, it was proven 21 that the state is doing wrong, weakening the transient, temporary (überkommenen) rights of the church, guarding them, distrusting it, that it lacks either a calling or even the power to pronounce judgment in religious - and ecclesiastical matters, that here, on the contrary, it should limit itself to achieving only its own interests. – The Apostolic See has always protested against government approval of church laws and orders (placet) and demanded recognition of its authority in church legislation, as well as freedom in ecclesiastical relations between believers and churches with the head of the Catholic Church.
The theory of state canonists, no less than the practice of governments, remained insensitive to this reaction of church science and church authority. Thereafter, as before, the application of the supposedly inalienable sovereign right of the state in relation to the church (Kirchenhoheit) went on as usual and was interpreted as a reward to the government for the recognition and protection it provided to the Christian religion and the Catholic Church. That under the dominance of this theory there can be no talk in the strict sense of either ecclesiastical freedom or ecclesiastical law, this is shown by history wherever the basic principles of so-called Josephinism have found application. 22
In our age, when the strength of faith, hatred of faith and indifferentism argue about supremacy, and the newest state teaching tries to construct the concept of the state from the goal of the state, a variety of theories are put forward in discussing the relationship between church and state.
1. As soon as the "police state" gave way to the "legal state", the guardianship of the church through the state government should also fall. However, the theory of the legal state with remarkable tenacity firmly holds on to the existence of the right of state majesty in relation to the church (Kirchenhoheit) - a concept that has retained its place in the newest system of government, although the heterogeneity of the state and the Christian church is recognized as fundamental, independent of the arbitrariness of the state, and thus the recognition of the authorized existence, which in the old system was only a concession of the state, to the church is not denied. But the concept “Kirchenhoheit” embraces: 1) the position of many churches in the state region; 2) defining the relationship between the state and the individual church.
– In the first respect, the idea of freedom of conscience won victory through persistent struggle, the harm of coercion to faith was recognized; the individual is granted freedom of belief, but the formation of religious societies is allowed only under certain restrictions. The system of recognized faiths, privileged Christian churches, is retained. Hence it is explained that the principle of equality (paritat) of Christian churches in comparison with tolerant only sects or dissidents and Jewish religious communities, especially in German state law, is not only maintained, but is even considered an axiom. The state should be Christian, but its politics should not be confessional. As for the relationship of the state to a particular church, the limits of the mutual spheres of life and law are determined by state law. Here, in this way, the recognition is also expressed that the Church belongs to an independent existence.
But the theory of the legal state declared that, in particular, very many of the external actions of the Church are subject to state law and the state system is confident that it has the right to regulate the external relations of a particular church; and then she positively and unfairly declared that the state itself decides that it belongs to the field of external relations, and takes control of these objects into its own hands, not paying attention to the norms already given by the Church; assigns to its norms the force of law even in the ecclesiastical legal sphere, rejecting, for example, the entire existence of ecclesiastical jurisdiction (forum ecclesiasticum externum). The theory also tries, for often dialectical reasons, to isolate state and church judicial cases. The basis for the division is borrowed either from appearance or materiality, in which case the desired regulation of external relations must necessarily occur through the state, or from the goals of individual institutions, but this does not help at all, since this goal can be either controversial or multilateral.
In untying the knot lies the retitio principii; its resolution reveals a large number of mixed cases (res mixtae), which do not separately belong to either state or church jurisdiction. Regarding these cases, the theory rests either, firstly, on the principle of legal regulation of the relationship in question (i.e., who makes the law, judges) and then either the Church or the state can have an advantage, which each time depends on the case whether one of the two reciprocal norms seems to cover the other and therefore completely satisfy justice; or such dualism of State and Church is presented in a bad light and then preference is given to one of the two legislations simply to avoid such dualism; or, secondly, it teaches that none of the authorities prevails, but each, in agreement with the other, must fulfill its own. In this case, the whole theory turns out to be completely unnecessary, since the contracting parties always have the right to agree on what and how they consider to be best.
2. Contrary to the assertion, especially of the German, in the old ruts moving, state teachings about the inalienability of the state right of majesty in relation to the Church, others put forward an axiom about the freedom of the Church, which is a necessary correlative of state freedom. “A free Church in a free state” is the slogan of this liberal school. The desire to free the Church from the shackles imposed on it by the preventive measures of the police state can be considered freely reasonable; The idea that this kind of free Church is strong enough to bring the Christian idea to a victorious end in the spiritual age-old struggle is also highly reasonable. But, despite the fact that this separation of two powers has been so internally connected for so long, it is a violent action that at once breaks a thousand legal relations in a completely lawless, criminal way; in any case, this is a painful operation that can only be allowed as a last resort to put a quick end to the completed nationalization of the Church (Verstaatlichung).
The separation of state and Church presupposes the existing connection between both and quite correctly marks the fall of the original idea of \u200b\u200bharmony of state and Church. If the latter does not yet exist, talking about a free Church in a free state makes common sense and does not mean regression, as long as there is no legally defined or hostile relationship between the state and the Church. Here the Church rejoices in its freedom and does not see itself forced to make broad claims to the state.
3. The theory considered is based on the idea of freedom of the Church; the idea of the indifference of religion for the state area lies at the basis of another theory, according to which the state has neither mind (keinen Sinn) nor vocation for the supernatural and therefore must be indifferent in relation to the faith of its citizens and in relation to each of their church unions. Church institutions (denominationen) are deprived of all privileges, they are not under any exclusive laws, but are subject to the only general state laws and, in the context of their state recognition, as corporations, i.e. in consideration, their foundations and management should be on an equal footing with other societies and unions, together with which they enjoy the same legal protection from government administration. That the state government should not be anti-Christian is not denied: on the contrary, it should pay attention to Christian teaching and take care that its institutions are effective.
Only about a privileged church, about the requirement of confessionality from an individual, about a state church and religion there can be no talk; on the contrary, specially religious teaching or education or compulsory, in any case, is considered dangerous to the state. From the point of view of the Catholic Church, this theory, not free from political shortcomings, for the sake of a purely negative attitude towards all religions and the Catholic Church cannot be approved, but is not rejected where it does not appear as a consequence of the gap between the state and the Church. 23
4. The theocratic state recognizes itself in complete detachment (Absolutheit), feels itself high above everything earthly, responsible only to God, as His creation and image; but according to pantheistic as well as atheistic worldviews, the state is an end in itself, the implementation of a moral idea, the highest stage of development, I, omnipotently, God himself. The state embraces all phenomena of life, it is identical with the most perfect human society, it is the source of all power, as well as law. In the consistency of this worldview, an independent church is logically unthinkable; in practice, it is either superfluous, or, in cases where it is not given to the state, does not want to be integrated into its body, it is harmful to the state, dangerous to the state, and therefore subject to destruction. In relation to the church, everything is permissible; the state instills culture and against the church that does not submit to its will, as an enemy of its culture, it comes out with sharp repressions, without weakening the preventive measures of the police state.
This system goes much further than the police state, to which it is in many ways similar, to the extent that the Church, which has become a state, reveres even less than a necessary means of a police state, but only as a transitional state, until the moment when, through the implementation of the absolute state idea, everyone will be removed, therefore, church society outside the state and the state in its detachment will become all in all. Here the idea of the ancient state is carried out in a way that it was not carried out even under the pagan Caesars.
5. The monarchical and universal understanding of church power on the part of the curialists of the Middle Ages, although over the centuries it lost its popularity, much less its meaning and influence, however, to this day it has retained faithful adherents among some writers who, despite the changed political relations, are confident that they must firmly adhere to the position of the church in relation to the state - of course, only in theory - which in the Middle Ages the church, or specifically the pope, preached, and which even at that time was not at all used calm. This system is called hierocratic, since it not only recognizes the unconditional superiority (Superioritat) of the church over the state, but also, rejecting the dualism of both powers, one - the state - subordinates the other - the church, not only in ecclesiastical matters, but also in political affairs.
The adherents of this theory are enthusiastic panegyrists of the medieval state; they deny any justification for the political changes that have come; they are either deeply convinced of the impracticability of their theory and in this case they like to present its provisions, treating with complete contempt the conciliatory way of thinking, in their full rigidity and at the same time trying to give them the stamp of dogmatic truth - or they do not yet consider lost the hope that their principles will have practical influence and reassure them with an explanation that they should not be understood in the sense of direct, ordinary, permanent power of the church or pope over the state, but should only be understood as indirect emergency, forced by special circumstances to act, directing the power of the church, that the pope has the right and duty to instruct princes in their duties and, where the salvation of souls or the church requires it, to declare state demands invalid.
It is clear that for practice such a distinction made by theory is of no importance, and it makes no difference whether the pope declares the union between the prince and his subjects permitted directly or indirectly. In any case, there is no talk about the dominance of the state, about its independence, about the state-legal sphere, when outside state power decides whether a state requirement or law has the force of law and whether there is a need for its existence for the state sphere.
§ 4. Basic principles and characteristic properties of the law of the Russian Church
The peculiarity of the position and relationship to the state of the Russian Church in comparison with the Western Church. Fidelity to the legislation and traditions of the ancient Eastern Church. Particular respect for royal power. The position of the sovereign in the church and his special attitude towards it.
A historical review of the relations between church and state, as well as the emergence of various political teachings that sought to scientifically and legally substantiate these relations, very clearly depicts various moments of the struggle for the original existence, the freedom of its life of the Christian Church among the peoples of Western Europe, its rapidly increasing successes in this struggle, revealed by the subordination of entire states under its authority; and then - individual moments of the struggle for independence and freedom from church influence of these states themselves. Thus, the struggle for freedom and the struggle for dominance represent, so to speak, the vital nerve of the centuries-old history of mutual relations between church and state in the West. What result did this struggle give? What did these two warring parties achieve through a long, centuries-long struggle? What have they given to the present time?
The once great Roman Church, which took precedence among private, local churches, separated from the union and communion with them, spread its borders widely in Western Europe, and managed to deeply root its spiritual authority among them, has now fallen so low in the consciousness of the peoples whom it educated, that it has lost all confidence in itself, in its divine mission on earth. The medieval state, which “good Catholics” now sigh about as a flourishing state of the church, in the minds of most cultural peoples is depicted as a terrible time of spiritual slavery, darkness, a time of cruel torture and the fires of the Holy Inquisition. For most of the peoples of Western Europe, Catholicism and the papacy have now become synonymous with religious lies and violence, sounds that arouse feelings of anger, disgust and revenge.
In enmity with their mother church, these fighters for religious, moral and cultural freedom have long lost all sense of proportion and decency: there is no crime that they would not attribute to her, no vice for which they would not blame her, no disaster for which, in their views, she would not be responsible. And it would be good if all this evil attributed to her concerned only the external side of her existence, her policy towards states, the way of life of certain influential persons of hers, for example, some popes or her institutions, for example, the Jesuit order: no, the former children accuse and loudly denounce their former mother of perverting the most holy treasure, the bearer of which she was destined to be the Lord and the Apostles: in the perversion of divine truth, in the perversion sacraments, in the perversion of the statutes and discipline of the ancient Church of Christ and the Apostolic Church.
The first renegades from the Catholic Church openly preached that its sacraments = idololatria, impii cultus; its dogmas are impia dogmata et doctrina daemoniorum et antichristi; its high priest is ipsum verum antichristum esse 24 and their voice was sympathetically listened to by the sovereigns: they took upon themselves the responsibility of preserving the shrine of Christianity and the church; The Catholic Church began to be interpreted as a political body created by cunning deceivers, power-hungry and self-interested popes in dark times. In passionate polemics and mutual denunciations, the opponents spared nothing, and through this unhappy struggle they achieved that they destroyed the last remnants of living faith in both the church and religion. Rationalism, skepticism and complete atheism took the place of faith. This is how the current state of affairs was created in Europe in the 19th century, characterized by cold indifference, the desire of Christians outside the church to fragment into small religious societies, cultural struggle, persecution of the church, and the revival of atheism and paganism.
Of a completely different kind of interest is the history of the Eastern Church, and in particular the Russian Church, in its relations with the peoples and states among which it established itself, on which it spiritually influenced and continues to influence, taking on the character of both a national and state church. The historical interest here lies in the fact that in the continuation of its centuries-long existence among the most diverse nationalities, under the most diverse external conditions, the Church of Christ remained an internally original whole, always remained identical; on the other hand, remaining unswervingly true to its spirit, its tasks, it entered into the most friendly relations with states, penetrated into the entire state organism, as if merging with it into one whole. Its position in the East and among the Slavic peoples is accurately depicted by the ancient patristic likeness of a ship sailing on a vast ocean.
This ship of the Church of Christ sails to different nations; accepts new and new swimmers; they diversify the hull of the ship, motley and decorating it with their national colors; but they themselves change even more spiritually, becoming akin to the unity of faith and spirit in the ship with representatives of the most different nations and times. Time and the political destinies of the Orthodox Church put their marks on the hull of her ship, expand and variegate it; but its internal structure, the discipline that dominates it, its goal and direction remain unchanged.
At the same time, two main principles in the internal life of the Orthodox Russian Church appear with particular clarity, characterizing the features of its external relations and, in particular, its law; this is: a) her loyalty to the dogmas, canons, statutes and traditions of the ancient Universal Church and b) her high respect for royal power.
Both by its historical origin and by its internal character and structure, the Orthodox Russian Church is a living branch of the Eastern Church.
The Russian people heard the first news about Christianity from the Greeks. The historical conditions that favored his sincere disposition towards the Christian faith of the Greek law included those close political and trade relations into which the first organizers of the state system of the Russian land, the Varangian Russians, entered into with Byzantium. Byzantium was a representative of Christian culture. Everything Greek amazed and captivated this rough, warlike people, as the Russian people appear on the historical stage. Naturally, therefore, it happened that before the Equal-to-the-Apostles Russian prince undertook the feat of enlightening his land with Christianity, his capital was already filled with Christians; she was already predisposed to accept the Greek faith.
This external motive, which was favorable to it only due to the fact that it is the Greek faith, the faith of the most educated and powerful people, found itself strengthened in another more important circumstance in terms of its internal influence - in the celebration of Greek worship among the neighboring Slavic peoples in a language understandable to the Russians. The first monuments of Russian writing, the beginnings of Russian literature, were dedicated to the service of the Christian religion. The rough but healthy feeling of the pagan Slav, the childish but receptive mind in Christian worship and church literature suddenly received such complete satisfaction that they already irrevocably submitted to the authority of religion. And no further than under the successor of St. Vladimir “the Christian faith began to multiply and the monks began to multiply and the monastery began to be many.”
Yaroslav himself, loving the splendor of the church, loved priests and monks “too much and was often devoted to book reading; and a gathering of many scribes who translated the Greek books into the Slovenian language, and copied many books, and people are taught by them even to this day 25.”
Meanwhile, among the newly enlightened Russian people, the Christian faith of the Greek law reached its full triumph, in the Christian East and West that important and fatal event for subsequent Christian history, which is called the division of the churches into Eastern and Western, has almost already taken place. The sharp isolation of the representatives of one and the other, the passionate polemics between the two antagonists, excluded for the Russians any reason for hesitation in deciding the question: which of the two warring parties to lean towards with their sympathies. The circumstances mentioned above were already so strongly in favor of the Eastern Church.
But the Russians should have been favored by her obvious rightness: they did not need to go into the details of the disputes and ups and downs of the struggle between Rome and Constantinople; the issue was decided for them by the written laws of faith of both - and the advantage immediately remained with the Greeks: they had an excellently processed nomocanon in the XIV titles, edited by the famous Photius, the largest and most important part of which was part of the ancient Greek nomocanon of John Scholasticus, already translated into the Slavic language, perhaps by the apostles of the Slavs - Sts. Cyril and Methodius. In accordance with this nomocanon, the Roman Church could only give the false Isidorean decretals, which appeared only a few years earlier than the Photius nomocanon: how could they compare with the latter? Yes, this Greek nomocanon could already serve for the Russians as evidence of the truth of the Eastern Church and an exposer of the wrongness of the Roman Church.
It also contained a strong positive side of the truth of the Eastern Church: since it contained in its entirety all canonical ecumenical legislation, starting with the rules of St. the Apostles and further embracing the 7 Ecumenical and Local Rules (of which the oldest were approved by the VI Ecumenical Council and recognized even by the Roman Church) and St. fathers. Here, in the same nomocanon, the Russians could also encounter denunciations of the Latins for deviating from the prescriptions of ancient ecumenical legislation (the denunciations are contained in the rules of the Trullo Council). And history confirms this meaning of the Greek nomocanon with the most indisputable evidence. Ancient Russian writing is rich in lists of the nomocanon, and these lists go back, according to undoubted historical evidence, to the time of Izyaslav, the son of Yaroslav, and then continue to appear in all subsequent centuries; in addition, the Slavic nomocanon could have arrived in a sufficient number of copies from other Slavic lands even earlier: Vladimir and Yaroslav already used the Greek nomocanon when drawing up their charters.
The Nomocanon was a sacred book for the Russian Church, the foundation and reflection of its faith, its structure, its discipline, and continues to be so to this day. As containing the externally ordered legislation of the ancient Catholic and Apostolic Church, it has always served and serves for the Russian Church as an internal connection with other parts of the entire Eastern Church and with the ancient Universal Church, a measure or criterion for judging and assessing its own state at a given moment and the state of other churches that stand in fraternal relations with it. The principle of the obligatory nature of ecumenical legislation for the Russian Church is the first basic principle of all its law. In this capacity, it is solemnly pronounced by each of the bishops at his ordination: since the bishops bear, first of all, the duty of the right to govern the Church: “I believe in the Seventh Council of Orthodox Saints, Father, and I have rejected it, and I have destroyed it, and I have cursed it, and I have cursed it. And even as you have given us the Scripture, I accept...
I flock to the catholicity and apostolic church and thus I believe and will confess before the nations” 26. This is how the ancient Russian bishop solemnly professed this great principle, and so every modern Russian bishop professes it.
This is precisely the great principle - the living beginning of the law of the Russian Church: the laws of the Universal Church are the rules “having a life-giving word,” as another Russian hierarch, Cyril II, Metropolitan of Kiev, attested to this at the Vladimir Council of 1274: “It is dangerous for all who have received the priesthood with all the care (befitting) to observe the holy rules of the most holy Apostle and according to those former Our reverend fathers, who have the living word, with their most pure laws, like some wonderful walls, protected God’s church and laid a stone of solidity in the foundation, which Christ swears will not be destroyed from hell itself.” Turning then to the current state of the Russian Church and seeing in it “much disagreement and rudeness,” he believes that one of the reasons for this is the oblivion of the holy rules; Seeing then the disasters of the church and the fatherland, here too he points out the clear consequence of the transgression of the father’s commandments: “Who then is the heir who has left God’s rules? Has God not scattered us across the face of the whole earth? Shouldn't we take our city? Did not our mighty princes fall with the edge of the sword?
Weren't our children taken into captivity? Haven’t the saints neglected the churches of God? Now I have thought with the holy council and with the venerable bishops that they should perform tests on church things” 27. And then this saint and with him the council of Russian bishops establish their own rules regarding certain phenomena in Russian church life: these rules are strictly based on the rules of the nomocanon, which had just appeared in Rus' before in the new Slavic translation of St. Sava, Archbishop of Serbia.
Centuries passed, important questions of church structure and discipline arose, complex church and political relations arose, sometimes putting the Russian hierarchy, Russian princes, and the entire Russian Orthodox people in a critical position, regarding the most cherished church and national traditions, their closest sympathies and antipathies. Strigolniks and Judaizers appeared, these ancient Russian Protestants, who radically overthrew the contemporary and previous structure of the Russian Church and contrasted it with their unusually bold and radically opposed church teachings; In the fight against them, some ardent zealots of churchism fell into infatuation with their power, infatuation that went as far as praising the inquisitorial methods of persecuting heretics and the policies of the “Spanish king.”
Discord arose among the Russian hierarchy itself - the Russian bishops, one half of whom - the Western Russian - with the assistance of the Lithuanian princes, took energetic measures to isolate themselves into a separate metropolitanate and thus divide the united Russian Church into two independent ones; there was a moment when the spiritual connection of the Russian Church with its mother Church of Constantinople was ready to collapse, whose unworthy leaders were ready to enslave it under the yoke of the Pope and do the same with the Russian Church (Union of Florence). But quite victoriously and with amazing skill, the Russian Church emerged from these difficulties, and all this - invariably relying on its basic principle, the unchanging preservation of the rules and traditions of St. apostle and saint father of seven councils." This last of the indicated moments in the history of the Russian Church is so important and characteristic that we will allow us to give some evidence about it from the Russian people themselves of that time.
This is how the Grand Duke of Moscow Vasily Vasilyevich depicts this moment in his letter to the Patriarch of Constantinople Mitrofan: “After the repose of our late father, the Right Reverend Metropolitan Photius, for the need of a vile invasion of us and internecine wars and Christian for the sake of dispensation and spiritual benefit, I forced Bishop Jonah to come to you Ryazan, a spiritual husband who lived in a virtuous life from infancy for many years... with a request that we would appoint that Bishop Jonah to the metropolis. Because we didn’t know why, they didn’t accept our petition, they didn’t install that bishop Jonah for us as metropolis... And for whom we neither sent a message, nor asked for anyone, nor demanded someone, we sent him to us, but the river of this Isidore. And God knows, even if we had not observed our original Orthodox Christianity, and if we had not had the fear of God in our hearts, we would never have wanted to accept it from there: but for the royal ambassador there was prayer and for the most holy patriarch a blessing, and for him there was contrition and much subjugation and petition, as soon as we received him.
When he forced us to submit a lot to him and petition, and to accept him, like a father and teacher, with much honor and good zeal, as before, like those of our previous most holy Russian metropolitans, imagining that this one is the only one from them, who does not want to do something from him in advance. And when this Isidore, who had been foretold, came to us, and from the first day they began to endeavor to make a collective journey, and when he was forbidden to go, he began to create great deeds, saying: because I am not strong enough, I will not go; If I don’t go, the imam will take an oath from the Holy Patriarch instead of a blessing. And because it was not possible to warn him to stop him from going on his way, and there were many words spoken to him about these: “If you then go, and if you ever return to us, then bring to us our ancient piety and Orthodox faith, which was received from our ancestor, the great Vladimir, which is held by the great catholic and apostolic faith of God.” Greek church; but do not bring other, strange and new and foreign prefabricated churches to us...
He promised with an oath that he would not bring him anything new and strange. Now come to us, bring many strange and foreign things into our Orthodox Christianity through the divine and sacred rules of the holy Apostles and God-bearing Fathers and through the divine law, which was handed down to us by the holy Apostles and God-bearing Fathers of the holy cathedrals and Apostles of the Greek Church and all Orthodox Christianity... Bring it to us from the Pope Scripture, in it about the Holy Dus two principles Latina affirmed in her Church to confess and unleavened bread wisely. He also writes about the departed, and this is perplexing to us: he writes his epistle like this: those who, in the true speech of faith, confession of God, by humility and repentance, did not hasten to bear the fruits of their sins, about which the spiritual fathers commanded them, and such, through the purification of torment, will be cleansed after death, and so on.
This Isidore himself, in his letters to him when he sent the scriptures, calling himself legatos from the edge of the apostolic seat, Latvian and Lithuanian and German, and sealed his scriptures with green seals and commanded before himself to wear a crucifix in Latin carved... also the commemoration of my father’s name in our holy collection and create a great church in your service, and to this end subjugate us and enslave us under the excommunication of many for the sake of heresies by the saints and God-bearing fathers, the Roman Church and the Pope of Rome... Not only did you create this, but brought many other strange and foreign things from the Orthodox Christian faith into our Orthodoxy. Having heard and seen this, we were moved first, then placing our hope in the ineffable destinies of God and thanking his love for mankind, we convened the God-loving bishops of our fatherland, who at that time found themselves near us...
and I commanded them to look at that divine and sacred rule of the holy Apostles and God-bearing fathers, who were received from the great holy team, the Apostolic Church of God of the Greek of your true Orthodoxy, and that message brought by him from the Pope was ordered to be read on the mass. And he appeared to all our God-loving Russian bishops and the most honest archimandrite and reverend abbot and other holy monks and monks, and to all of our Orthodox Christianity, as if Isidore’s whole work and coming was alien and strange from the Divine and sacred rules. And for the sake of the ambassador, that scripture is Papa’s, written in Latin and according to your Greek grammar, which Isidore brought to us, under Papa’s seal.
And we ask your most holy sovereignty, and with the holy king and with the whole divine and consecrated council, having looked into your holy and divine Greek rule and in it your father's message and having considered it, and for the need of a long and impassable journey and for the presence of the godless Hagarians against our Christianity and for the disorder and rebellion in the countries surrounding us and the multiplication of rulers, Freely create for us the installation of a metropolitan in our land. Also for this reason, we need to do all the spiritual things for every Orthodox Christian, and our hidden, and the Lord’s necessary words and deeds, we need to do with the Metropolitan, interpreted by younger people, from them there is a lot of things to be hidden and they will not know before.
And for this sake, we ask your holy dominion, send to us your most honest writing, as if with the help of God and the grace of the Holy Spirit and the haste of the holy king and with the blessing of your holy dominion and the divine sacred collection, according to the holy rule, gathered in our fatherland, in the ruth of the earth, the God-loving bishops of our fatherland, and according to the grace of the Holy Spirit, who has chosen a man of goodness, a spiritual man, an Orthodox faith, may they install a metropolitan for us in Rus': even before this, out of necessity, the installation of a metropolitan in Rus' happened. And we want this, by God’s grace, from the beginning of our Orthodox Christianity, sending and interrogating and loving with the holy king and demanding and desiring your most holy blessings and prayers, God wills it to the utmost, and our land will stand as long as we can, and our Orthodox Christianity will in no way be separated from you forever.” 28
We have taken the liberty of citing rather long excerpts from this message of the Old Russian Grand Duke due to their special character. In truth, the humility of this prince before the blessed king and the pious Patriarch of Constantinople is amazing; This delicate, subtle, honest and firm policy of him is highly characteristic.
The prince was well aware of the hesitation of the patriarchal throne before the seductions of the union with Rome; Isidore too clearly revealed his mission in favor of this policy in relation to the Russian Church; and yet this Greek, unwanted, not asked for by anyone in Rus', two-faced, was received with honor; the sovereign's own interest, which required precisely a natural Russian metropolitan: for the Russian prince had to communicate with the Greek through an interpreter, translator, his “innermost, and the master's necessary words and deeds” to be trusted to a third person, a young man, was not at all consistent with the continuation of the old custom of receiving a metropolitan - the prince's first ally - from Greece and from the Greeks; and despite all this, how legally, how fully the Russian prince proves to the Tsar and Patriarch of Constantinople the right of the Russian Church to freely elect a metropolitan from among the Russian people by a council of its bishops!
It is truly difficult to find anywhere such an example of such deep respect for authority, resting solely and exclusively on the branch relations of one church to another that were formed long ago. The sense of truth was so alive in this era; This is how the authority of the older church seemed sacred; the union of love with her was so highly valued!
Occurring in the 16th century. the famous hundred-domed cathedral represents, as it were, an audit and judgment of the Russian hierarchy about the state of the Russian Church of that time. The basis for the judgment is the Greek nomocanon with its rules of St. apostle and saint fathers. Both the tsar and the council do not hesitate to condemn those customs and practices in church administration, in church rites, that do not agree with the criterion they have chosen, the authority of which is beyond doubt for everyone.
The establishment of the Russian patriarchate that followed towards the end of this century was considered, among other things, as a measure to protect and strengthen the spirit and traditions of the ancient Eastern Church, whose representatives in the east - the Greek churches at that time were exhausted under the weight of the Turkish yoke: thus, in the act of establishing the patriarchate, the following words were put into the mouth of Tsar Theodore Ioannovich: “We know, speech, fathers, how excessive piety happened in the days pious kings in Hellas, and in Africa, in Egypt and in Libya, and in Palestine, and in Syria, in the Greek land, in the city of Constantine, and in Alexandria, and in Antioch, and in the holy city of Jerusalem and in other countries, where the ineffable vision of God was accomplished and a multi-human people turned from the darkness of ignorance to the light of prudence; now, as we also hear you, that there is a glorious place and worthy of much honor, which was built for the praise of the glorified God in the Trinity and for the salvation of men, everything was trampled under the hands of the wicked Turks and as if nothing good can be seen from them, but everything is dishonored and reviled...
Our country, as you see, is expanding by the grace of God, especially our pious faith, which was established on the basis of the Apostle and Prophet, is growing and multiplying; and for this reason I want, if God wills it and the divine scriptures do not prophesy, that the highest patriarchal throne will be established in the reigning city of Moscow” 29. At the time of his appointment, the patriarch was instructed to “most especially guard and preserve the common traditions of the Holy Apostolic Church, immovably and without stumbling, and do nothing differently, bring nothing less than the traditions of St. Apostle and St. father canon and rules" 30; - and in his confession, the newly installed patriarch gave an obligation: “I also confess to observe the peace of the church, and not to philosophize against any right, in all my life, in everything following and obeying the holy apostles and the holy seventh ecumenical council” 31. In the seventeenth century.
all the activities of Patriarch Nikon in correcting liturgical books were a consistent implementation of the principle we are considering; Soon after, the large Moscow cathedral that took place, which made many orders and decrees regarding church improvement, remained just as faithful to this principle, and the patriarchs who were there, Alexandria and Antioch, fully approved of the actions of the council. “The Holy Patriarchs, it is said in the council acts, heard our councils and deeds and reasonings, and said that this is true and right, and agrees with us in everything; just as we hold and philosophize from the beginning: so you also naturally received unction and philosophized, for this reason betray the holy one. Apostles and St. fathers and saints The church has an ancient rite. And with your blessing you confirmed our councils and reasoning.” In the 18th century the statement of St.
Instead of the patriarchate, the Synod introduced quite important changes in the order of church government and in various relations of church life; but at the same time, the basic ecumenical legislation is left as before in its full obligatory nature for the Russian hierarchy. Thus, in a letter to the Eastern Patriarchs on the establishment of the Holy Synod, Peter the Great wrote: “We have determined the same spiritual Holy Synod, through the instructions issued, so that the Holy Church would be governed in everything according to the dogmas of the holy Orthodox Catholic churches of the Eastern confession irrevocably, and these dogmas would have as the infallible rule of their rule, in which they and the oath of the Holy the congregation of the church, kissing the holy cross and signing it themselves obliged themselves” 32 . And the spiritual regulations established the first rule for diocesan bishops: ecumenical and local councils, and that in them it is commanded that both their rank and the entire clergy should know much that cannot be done without diligent and frequent reading.” And among the main provisions on the establishment of St.
The Synod's spiritual regulations contain the following article, repeated later in both the current and present Ordinance. Spirit. Consistory: “the basis of government is the law of God proposed in the Holy Scriptures, as well as the canons or rules of the council, St. father and so on." – In the present century, the principle in question was solemnly expressed by the Holy Synod on the occasion of the publication of the so-called “Book of Rules” in 1839. Publication, as stated in itself. The title of the book followed: “for the establishment of a single, holy Orthodox Catholic Church” and, as explained in the report of the Chief Prosecutor of the Holy Synod regarding this publication, it should serve in our fatherland as the main basis for the ecclesiastical court and canon law itself, the study of which on this basis is recognized as necessary for the establishment of Orthodoxy itself.
It goes without saying that we are far from the idea of asserting that the history of the law of the ancient Russian Church everywhere and entirely represents a steady consistency with this beginning, that there were no deviations from the law of the Universal Church. Quite the opposite. Deviations were not uncommon and sometimes very sharp, but they also provoked a reaction - a return to the prototype, a correction. The interest of studying the history of the law of the Russian Church lies in the fact that it represents a continuous struggle of church canonical ideas with national customs hostile to them, with natural shortcomings and passions, usually manifested with particular sharpness among strong, rude peoples, such as the peoples of the vast northern territory of Rus', and an ever-increasing success in such an apparently uneven struggle. What social life, what kind of family hearth, what morals did the Church of Christ meet among the Russians?
All this stood at the lowest level of education: clan was at enmity with clan where some family principles had already formed; but in other places it was even worse: here people, in the words of the chronicler, “live brutally.” Which neighboring peoples entered into immediate peaceful or hostile relations and clashes with the Russians in order to promote their civilization with their influence? Pechenegs, Polovtsians, Tatars, who instilled fear even in the Russians with their mere appearance. Is it surprising if the Christian idea, the most sacred right or authority, at times turned into very unattractive types in the practices of clergymen who grew up under such cultural conditions? Is it surprising that at times church punishment turned into execution and cruelty, pastoral power into brutal tyranny, food from the altar into feeding and feeding?
Then, among this darkness, individual true lights of faith stood out more sharply, the light of which not a single remote wilderness, not a single poorest and wildest corner of Great Rus' - from Kyiv to the extreme island of the Arctic Ocean and the most remote parts of Siberia - seemed to lack. What were the successes of church canonical ideas, what was the victory of the Orthodox Church in its educational struggle against the natural savagery of the Russian people, and what was the basis for its future successes? In the past, its successes consisted in the fact that it acquired and strengthened its authority among the Russian people: according to their consciousness, there was and is not and will not be a faith better than it, in it is truth and righteousness, in it is sanctification and salvation. There is truth and truth in it, because there is no deification of human authority in it: before its demands, the king, the patriarch, and the last poor man are equal. Earthly greatness does not stand before her strict judgment and reproof; she is equally strict towards everyone and equally merciful in everything; in it the law is always above the highest persons.
In it is sanctification and salvation; because thousands of years of experience have proven that both in the lives of individuals and in the life of the entire Russian state, in the most critical moments of a hopeless situation, the church raised its strong voice, encouraged, gave visible help and saved. And so, the cities, villages and deserts of the Russian land are replete with God’s churches; the Russian people cannot settle and multiply without them; they are always his faithful companions; they became his necessity.
This centuries-old faith in the authority of the Church as a Church, and not in representatives of its infallible power, such as the infallible Roman high priest, the immutability and constancy of the principles of its discipline, the simplicity of its structure, according to which the entire fullness of its spiritual means is carried out only by three degrees of hierarchy, and each newly growing outlying region is easily arranged into a separate diocese with its own bishop, equal in sacred power with all other bishops The church, with its clergy, with its many faithful, with all the fullness of grace-filled gifts, is a sure guarantee for its success in the future.
She is not afraid of the attacks of rationalism and negative historical criticism. For its laws have already been tested by centuries-old trials; there is no falsa decreta in them; on the other hand - internal, in their essence they are invincible by reason, because they attract a direct sense of truth and captivate the heart. She is not afraid of Changes, political transformations, because she has never linked her well-being with the favorable attitudes of states towards her. With deep gratitude she accepted rich contributions and grants from the ancient princes and did not cease to pray for their prosperity even when her descendants took back from her possessions what their ancestors had given her. The ruling, state Russian Church has always had and still has before its eyes the example of the extremely poor Eastern churches and those who do not deplete in their inner strength.
The second main principle of the law of the Russian Church, which also passes consistently and continuously through its history, is the recognition by the church of representatives of state power of the special advantages of a position in the church and the rights of patronage and active participation in the organization of church affairs. This attitude of the Church towards representatives of state power serves as the basis for the closest, internal union between the church and the state in general, so that with the complete originality and independence of the structure and law of the Russian Church, in many respects it is in such unity with the state that it can be considered as one whole.
What is especially worthy of attention in this regard is the naturalness of such a union, based not on the artificial means of prudent and consistent policy, not by the force of necessity, not by the result of any amicable deal, not by the force of the political tact of the government, secular or spiritual, but on the deep, religiously sanctified respect for the royal power, which the church has always cultivated in the Russian people, on the centuries-justified patronage and protection of church interests on the part of the state power itself, on its fidelity and devotion to the Orthodox Church and its institutions.
Oh, if only this naturalness, based on these foundations, remained unshakable in the minds and hearts of the Russian people in our century, when with such energy, under the cover of either the results of modern state science, or under the cover of fashionable principles of freedom of conscience, ideas and trends of atheism, indifferentism and positive hostility towards any religion, ready to destroy this naturalness, rush into us from the West, which has suffered from oppressive, painful discord between the state and the church and, as a result, either asleep in apathy and in complete despair about restoring peace between them, or trying to invent the most artificial means, the most sophisticated theories for this! Bringing to mind this predicament of the enlightened Western peoples, cultural Western states and comparing with it the relations of union and internal peace, resting on the mutual trust of the church to the state and back with us, one cannot help but recognize, together with the Most Reverend John, Bishop of Smolensk, these relations as “blessed” 33.
Revealing the particular basis of the union between the state and the Russian Church, His Grace John says: “The focus of this union, the support of this unity is royal power. The Church recognizes and maintains its relationship to the sovereign, as to the anointed one of God, placed by the Highest hand in the kingdom in which she (the Church) is located. Therefore, the Church recognizes the royal power as sacred, inviolable and indisputable; reveres it as an autocratic, unlimited power in the state, to which all members of the Church, equally those serving and those in charge, as members together of civil society, are subjects obliged to obey unquestioningly; as the power of supreme patronage and supervision in the Church, acting through state measures not only in preventing and suppressing crimes against it, but also in church governance itself.
In accordance with such concepts of royal power, the Church considers it its most sacred duty to protect its greatness and inviolability - to protect it with its teaching, its rules, its spiritual influence on the conscience and morals of the people.
Our Orthodox Church in particular expresses such concepts about royal power and its relationship to it:
a) in the solemn ceremony of royal anointing, by which the royal power is sanctified, and the anointed one, as appointed and ascended to the kingdom by God himself, is filled with special gifts of grace, not only to strengthen strength in the exploits of his high service, but also in order to be a pure instrument of the Divine will in the actions of his autocratic power, after which there is no higher power on earth, like the power of the king 34.
b) in national prayers for the Tsar, both everyday, at every church service, and special ones, on days of state celebrations, such as: on the days of the sacred crowning of the sovereign and accession to the throne, when the Church deliberately intensifies her prayers “for the hedgehog to bless his kingdom with the blessing of the King of the reigning; about his scepter being strengthened by the right hand of the Most High,” etc. 35.
Actually, in relation to itself, the Church prays for royal power: “Give them, Lord, a peaceful kingdom, so that in the silence of their quiet and silent life we will live in all piety and purity.” Also: “keep his (the King’s) kingdom, grant him deep and inalienable peace, speak good things in his heart about your Church, so that in his silence we may live a quiet life” 36.
c) in some special actions in relation to the royal power; so the Church: 1) accepts and testifies to the popular oath of allegiance to the sovereign; 2) obliges all his servants, not excluding the highest ones, by oath to unchanging loyalty and obedience to him, every time they take office; 3) in his teachings to the people, in their spiritual enlightenment by the law of God, in his moral influence on conscience and public life, he relentlessly inspires pure and perfect devotion to the throne, unquestioning submission to the royal power and will; 4) violation of the will or insult to the royal honor, any hostile plan against it warns, denounces and prohibits as a grave sin, and strikes with its spiritual judgment; It does not recognize traitors to the Tsar as its members, does not tolerate them in the company of its Orthodox sons and anathematizes them 37 .
According to such relations of the Church to the royal power, the latter, for its part, puts itself in a direct, living relationship with it, taking an active part in its dissemination, improvement - spiritual and material - patronage and assistance to its institutions, orders, and finally, in protecting it against hostile actions inside and outside the state. That this relationship of the state to the church is quite natural in our country, that is, it is based on foundations rooted in the very essence of the matter - is proven by the entire history of the Russian state from the time of St. Prince Vladimir. Not political calculation, not pressure on conscience were the motives that forced the warlike prince to become a Christian of the Greek law, but a free internal disposition, perhaps even combined with the conviction of the superiority of the Greek faith over all others, clearly recognized from comparing it with them. That is why, having become a Christian, St. Vladimir not only did not grow cold towards the faith, but on the contrary, he grew more and more in love for it.
His children marked themselves either by a deeply religious, moral life, having won the crown of martyrdom (Boris and Gleb), or by declaring an amazing love for the Christian enlightenment of themselves and their subjects (Yaroslav... and without loving church statutes). Then the history of the Russian church and its hagiology exhibit an amazingly long series of princes - zealots of the faith, zealots of enlightenment, princes of saints, princes-martyrs-sufferers for the faith. The long line of tsars of Moscow and all Rus' does not represent a single one who would not have marked himself with deep personal devotion to the Orthodox faith and hence the resulting actions for the good of the church; finally, the first Russian emperor, the transformer of the entire political system, marked his attitude towards the Orthodox Church in no other way than by solemnly confessing himself as Her obedient son and by actively striving, in accordance with the duty of the God-given power to him, to correct the spiritual order and to ensure that sufficient spiritual edification was taught to the Christian people.
It is clear that with such a basic nature of the relations between representatives of state power and the church, it is very difficult to bring them under any specific formulas of state law developed in the West under the influence of a completely different nature of relations. With deep personal religiosity, each prince, each king could act in a completely unique way, as his own conscience, reason, given circumstances and the persons of the hierarchy who stood at the helm of the government and the closest advisers to the head of state inspired him.
The oldest purely state act on the part of our princes in relation to the church was the definition of ecclesiastical jurisdiction, the exact calculation of church persons and institutions, and then legal cases and crimes, as subject to the exclusive jurisdiction of the ecclesiastical court, or the “general”, “mixed” court - episcopal (metropolitan) and princely. This calculation, starting with the so-called charters of Vladimirov and Yaroslavov, is then repeated in the letters of grant of later princes, in the codes of law of the kings John III and John IV; this calculation was then made under Peter the Great, and the scope of the ecclesiastical court was significantly reduced. From then to the present, the determination of church jurisdiction can generally be considered a matter of state power, although at all times the views or voice of the church itself or its highest administration have been taken into account. (This was done, not to mention the ancient times, and with the new definition of church jurisdiction regarding the introduction of the judicial reform of 1864).
– Another act that expressed the active participation of government officials in church affairs was the election of persons ordained to the episcopal and metropolitan degrees. That the voice of the prince had power in the election of the bishop is attested to by our chronicles, which express the following thought in the tone of the legal position of common law: “it is not righteous to jump to the holy throne, but the prince and his people will delight in him.” But the prince, as well as the people, acted in this case certainly in agreement with the advice of the council of bishops, which, according to the rules, ordained the beloved prince and people. The Council of Bishops thus had the right to appoint a bishop, as well as a metropolitan; but the preliminary act of election was carried out through the prince and the people, and, of course, with the participation of the council of bishops. This was the case in ancient times; later, during the Moscow metropolitan and patriarchal periods, the matter of electing bishops belonged to the entirely consecrated council under the metropolitan (then patriarch) of All Rus' and the Moscow leader.
prince and king; The same attitude remained with the introduction of synodal governance: election belongs to the members of the Synod, representing the Sovereign elected for approval.
It seems unnecessary to enumerate in detail other aspects of church life, through the influence of which representatives of state power in ancient Rus' expressed their attitude towards the church, in view of the fact that such a listing lacks any general guiding grounds on which it would be possible to establish a classification of government actions in relation to the Church. The Reverend John made an attempt to place the actions of government authorities in relation to the church under the following generally accepted categories:
1) Legislative, in which the autocratic power a) issued for the church, through its spiritual government, laws and regulations regarding the order of its governance and deanery, as well as its rights and advantages in the state 38; b) approved and promulgated the church’s own decrees for nationwide implementation in the state. 39
2) Observational, or the rights of supreme supervision over the state of the Church, the protection of Orthodoxy among the people, monitoring the church deanery, the actions of those who manage and serve in it, the implementation of its rules in the state, etc. - This included the actions of the supreme power in suppressing the most important crimes against the faith and the church, especially open and disturbing the world of the church, such as heresies, schisms, etc. 40
3) Actions proper governmental (administrative), such as: election and confirmation of the highest authorities in the Church, orders regarding the order of its administration, adjustment of church areas according to the types of state and for the general benefit of the fatherland, etc. 41
4) Judicial actions - the supreme right of trial over the highest clergy, civil executions of criminals against the faith and the church, etc. 42
“All these actions in the Church of royal power,” explains the Most Reverend John, were carried out within two constant limits: 1) only through the church government, either separately through the highest shepherds of the Church or through their general councils; – 2) not otherwise than on the general basis of the Church’s own, fundamental laws, which have always been the “divine and sacred rules of St. Apostle and God-bearing father, who was received from the holy, great, catholic and apostolic Church of the East" 43.
But such an attempt can hardly be considered successful, especially for the relations of state power to the Church in ancient Rus'. Thus, the calculated actions do not include the extremely important and rich in consequences salaries of princes and kings in favor of the church of real estate, monetary deposits, the construction of churches, deductions of income to the churches and generally concern for their material well-being. The government’s advice and concerns, jointly with persons of the hierarchy, on the spread of the Orthodox faith among semi-wild tribes on the outskirts of Rus', on the establishment of new bishops, and further joint meetings and actions on such important changes in the church structure as the establishment of independent election of all-Russian metropolitans, the establishment of the patriarchate, etc., which are not subject to any doubt as historical facts, do not fit into the above categories. – But on the other hand, the presented categories also indicate such actions of government authorities that in reality did not have the character they assimilated.
Thus, it is impossible to agree with the position that the secular government in ancient Rus' issued laws and regulations for the Church regarding the order of its administration and deanery (1st category). The statutes of Vladimir and Yaroslav, to which reference is made to prove this, do not contain anything of the kind. They, as we said before, have a special task - to establish church and state jurisdiction. Then, a reference to the proposals to the councils made by Tsars John IV and Alexei Mikhailovich can with great right be cited as proof of the opposite opinion that the Russian tsars did not consider themselves competent to issue laws and regulations on issues of church administration and deanery, but in such cases turned to the council of bishops, which they considered the only competent legislator.
Ivan Vasilyevich the Terrible at the Stoglavy Council speaks with his questions not at all as a legislator, but only as a co-questioner; at least formally, just as our ancient bishops and metropolitans appeared as co-questioners at the Patriarchal Synod of Constantinople, seeking here a solution to their perplexed questions. “Yes, come together with us,” says Ivan the Terrible, “asking God for help, in all our needs, advise and judge, and approve according to the rules of St. apostle and saint father and according to the previous laws of our ancestors, so that every business and every custom would be built according to God in our kingdom and under your holy shepherd, and under our state. And which customs in former times, after our father, Grand Duke Vasily Ivanovich of All Russia, have become unstable until now, or have been carried out in autocracy, according to one’s own will, or previous laws have been broken, or the work of carelessly God’s commandments has been weakened... about all this, please advise yourself spiritually and tell us this in the midst of the council.
And we demand your saintly advice and deeds and wish to consult with you about God to establish what is discordant for good. And what do we need, or what are the zemstvo disorders - and we announce this to you. And you, judging by the rules of St. apostle and saint father, affirm in general agreement, together. And I hit you, my father, and with my brethren and with my boyars with my forehead” 44. Legislators don't say that. The same should be said about the behavior of Alexei Mikhailovich at the council of 1667.
It is also impossible to agree with the fact that in ancient Rus' the secular government had “the rights of supreme supervision over the state of the church” (category 2) or “the supreme right of judgment over the highest clergy” (category 4). That great princes and kings very often pointed out to the church hierarchy the disorders they noticed or deviations from church order in the sphere of church life, and made demands on it in this regard - this is true; but from here it is still a long way from them to consider themselves or others to have jus inspectionis. This was a matter of pious zeal, the fruit of that deep attention to the interests and phenomena of church life, which was quite natural for an ancient Russian prince or tsar, whose private life and public activities were deeply and completely imbued with a religious and church character. That such a prince or king considered it his duty, his duty to point out the observed disorganizations to the hierarchy is completely natural, but for him to internalize such an attitude as a right is difficult to prove.
The same should be said about the supposed supreme right of judgment over the highest clergy. That princes and kings were present at the councils of bishops, that they even convened, or encouraged the metropolitan or patriarch to convene councils for the trial of the hierarchs, that they sat at these councils with the honor appropriate to princely or royal dignity - this is undoubtedly, but the highest right of court was always considered to belong to the council of bishops or, in the most important cases, to the Eastern patriarchs, but not to the prince or the king. 45
In general, about the relations of government power to the church in ancient Rus', it must be said that they were determined not by any specific legal principle, but by the degree of personal religious feeling of the ruler. Because of this, the difference in the attitude towards the church of one or another of the rulers essentially testified only to the fact that one, due to his personal individual abilities and inclinations, extended his attention and activities deeper into the sphere of church life, the other was content with the most modest share of influence on church affairs, being more occupied with state affairs or his own personal ones.
Moreover, even extreme passion for religious affairs could not be reflected harmfully for the authority of the hierarchy, could not be dangerous for it: for this authority stood high; without consultation with their bishops, neither the prince nor the tsar dared to do anything important in the church sphere; so that if an excess of piety served in any prince as the reason that he was carried away in his worries about the church further than he should have been by worldly power, then on the other hand this same religiosity encouraged him to restrain himself in this passion with high respect for the authority of the hierarchy, and the zealous and courageous reformer-prince bowed before it as the most obedient son of the church. A remarkable example of such an attitude is provided by Tsar Fyodor Ioannovich in the establishment of the patriarchate in Russia.
How the idea of establishing a patriarchate in Moscow was nurtured in the soul of the aforementioned sovereign is of no interest to us; what is important for us is that at the moment when it was already fully matured, the council of Russian bishops, for the discussion of which it was proposed, expressed the following to the pious tsar: “if your pious power delights, let this be announced by the ecumenical four patriarchs, and by this to each and every one of his metropolitans and bishops who advised and agreed with each other in writing, God helping God, make it convenient for such an undertaking to come to fruition: since you are a pious power and we all have these, like pillars of piety... but even more so, for the sake of this, let us not, O pious king, think in another language, especially those who write about the holy faith in lashyn and the like a heretic, because in the reigning city of Moscow the patriarchal throne was established only by the sole royal authority.
To this the lithography says: “The pious king, having heard this, does not speak hard about this, even if it is possible for him to establish the highest patriarchal throne, like a king and autocrat; but in both cases, deign to obey the will of God and the holy council; Most of all, he appeared in everything like a son and novice of the saints of the church” 46.
With the transformation of the entire state structure under Peter the Great, the relations of state power changed (the relations of the Church remained the same) in the sense that its influence on church affairs increased. This happened naturally, as a direct consequence of the exaltation of the head of state power, who took the title of emperor. Persons of the highest church hierarchy, together with other subjects of the state, had to become part of the class of estates and, together with other estates, recognize the only highest authority over themselves - the emperor. The abolition of the patriarchate was in the best possible harmony with the ongoing state reform: the patriarch, who had hitherto represented a person almost equal to that of the tsar in the state system, in any case standing out in importance above all other subjects of the state, was now replaced by a collegial institution composed of persons of the highest hierarchy and placed, in terms of state significance, on the same line with the governing senate, composed of representatives of the highest civil class.
The decrease in the importance of hierarchy in the state, which was already determined by these relations, was also increased by the fact that many cases and persons were separated from the jurisdiction of the church court and were subordinated to the jurisdiction of general state institutions. The emperor, a state reformer, had the idea of limiting the sphere of influence of the church hierarchy exclusively to matters of a spiritual nature and removing all worldly affairs from the former vast sphere of this influence - an idea that was far from being realized, however, due to the fact that the hitherto established relations were strengthened by changes and suddenly it was not possible to change them. – The result of such changes was that the highest governmental power of the Russian Church was concentrated in a government-ecclesiastical institution - the Holy Synod, established by the emperor and supposed to act in the name of the emperor: the Orthodox Church received the character of a state religion in the Russian state.
This character of the “state” religion is revealed externally by the fact that all orders, actions, and events of the church government have in the state for its subjects, in addition to church-legal bindingness, like church ones, and state-legal bindingness, since they would come from other government institutions. This is, without a doubt, the advantage of the new position that the Church occupied in the reformed state. But the hierarchy has lost a significant share of its former independence and independence from state power. For now its government actions, such as legislative, administrative - for the management of subordinate institutions and property - judicial and police are carried out only by the Highest permission and even approval. Only in very recent times has the Holy Synod been given a very small range of relatively unimportant matters, which are carried out without the Highest approval.
The general position of the Russian Church as a state religion is currently determined by our basic laws as follows:
1) The primary and dominant faith in the Russian Empire is the Christian Orthodox, Catholic, Eastern confession. 47
2) The Emperor, who possesses the Russian throne, cannot personally profess any other faith than the Orthodox: and by his rank and duty he is the supreme patron and defender of the Church, the guardian of its dogmas and all orthodoxy. 48
3) In church administration, autocratic power acts through the Holy Governing Synod, established by it 49. – It generally acts in two ways: 1) by considering and approving reports of the Holy Synod on matters requiring the Highest decision, and 2) by announcing to the Holy Synod and through it the promulgation of immediate Highest commands. 50
4) Both those born in the Orthodox faith and those converted to it from other faiths are forbidden to deviate from it and accept another faith, even Christian. 51
5) Any slightest disturbance of the Orthodox Church in its rules, in the priesthood, and any distraction from it are strictly prohibited. 52
6) All crimes against the Church, such as censure of the Orthodox faith, insult to shrines, violation of church decorum, non-compliance among the people with the rules and regulations of the Orthodox Church are judged as criminal offenses.
7) Works of science and art are subject to prohibition as soon as they contain anything tending to undermine the teachings of the Orthodox Church, its traditions and rituals, or in general the truths and dogmas of the Christian faith. 53
§ 5. The task of the science of church law
Codification of law, its interpretation. Scientific systematization.
The science of church law has the character of an exact positive science, relying, as its main foundation, on those positive sources from which law itself becomes recognizable. Its ultimate task consists in nothing other than the exact reconstruction and presentation of that integral legal image of the Church, which is given in its entirety by its objective law, set forth in positive sources. The science of law presupposes the latter as already existing, as a fact, on the one hand, already fully formed, having survived the history that preceded it, on the other, as something living, in its given state bearing the germ of changes that will later take place, which will then have further development and improvement. But if so, then a very natural question arises: what is its task? If the law is presented, so to speak, before the eyes of the student who studies it in its sources, then what does it mean that science should present it?
How will this scientific representation, the image of law, differ from the one given by its positive sources themselves? The answer is obtained from consideration of the state in which the provisions of law, set out in writing, are found in its sources.
Positive law contained in written sources is not something whole, completely and forever completed. At every moment of its existence it is the fruit of previous life, experience and legislative genius. Rarely, especially in the initial epochs of its existence, does it appear in the form of a whole, systematically embracing the different relationships of life. For the most part, it appears in writing in separate parts, or even as separate legislative acts (charter, prescription for a specific case, decree, etc.); so that sometimes a very long time passes, during which it remains in such a scattered, disjointed form, until, finally, a government authority or a private individual takes the trouble to collect these separate acts into one set or code. This compilation of codes, the codification of law, allows for the following different relationships in which the codifier becomes to its raw material. 1.
He introduces his material without any change, writing article by article, act by act, the way they reached him, observing only chronological order in the queue. 2. At a further stage, the codification of law allows for significant processing of raw material and precisely in two respects: a) the codifier arranges individual acts and articles not in their chronological order, but in a systematic one, arranges their branches or groups, combining in them those that are similar in content and subject matter; b) at the same time, it transforms their appearance in such a way that it singles out from them the elements that make up the historical part of the legislative act and those motives that guided the legislator personally, in a word, it singles out all the, so to speak, individual elements of a separate law and leaves in it only the legal provision, prescription or rule, thus turning the legislative act into a separate or separate articles of the law.
In this form, among the sources of the law of the Russian church are the Byzantine nomocanons - general and penance - the helmsman's book, the complete collection of laws of the Russian Empire, their code with continuations to it, the collection of decrees of the Holy Synod.
If in this kind of codes laws that have lost practical significance are highlighted, contradictory ones are reconciled: then they can satisfy more or less practical needs of use. If further they are approved for use by the authorities, then anyone who wants to prove any of their rights must literally, without changing anything, read or write down the legal provisions in those articles in which they are placed in the codes.
There is no doubt that in this kind of codes there is already a special, ordering rational element, which was not in the original laws, as they came from the legislator: nevertheless, such a state of law is still far from being scientifically processed. The codifier stopped, so to speak, at the very beginning of analyzing and synthesizing activity in relation to laws, that activity which constitutes the essence of the scientific attitude towards them. The individual articles of the code, in their logical construction, represent a highly variegated, varied matter of either abstract general provisions or concrete descriptions of events, persons, actions, objects, and for the most part are connected to each other mechanically, being connected not by logical affinity, but only by the commonality of the subject of the whole department they form; Each one exists in it as a complete whole, not losing anything depending on whether new articles are introduced in the vicinity of it, or, on the contrary, the old ones are changed or completely excluded.
– If we need to use a comparison to characterize this state of law, then the code can be likened to a well-organized warehouse for meat goods. In the warehouse, with all the accuracy, different parts of animal organisms are laid out on separate shelves: on one shelf - only legs, on the other - heads, on the third - loins, etc. This arrangement of organisms that have undergone dissection completely satisfies the practical needs of the buyer and seller; They easily find the required part of the animal on the shelves. Here is a kind of system: but an anatomist or physiologist is unlikely to be satisfied with such a system.
Individual articles of the code or individual provisions of law are, for the most part, such complex parts, so to speak, pieces into which the whole organism of law is mechanically dissected.
This comparison already partly explains how difficult it is sometimes to understand the true meaning of individual articles, so internally separated and externally grouped in codes. How necessary is a thorough analysis of their verbal and logical, then penetration into their inner affinities, bringing together the most apparently distant, the study of the entire modern or closest historical era, penetration into the general spirit of the entire social structure, to which, as external manifestations, certain articles of the code relate - this can be seen from the following considerations.
Each individual legal provision, law, is an expression of law in words. The verbal form must not only accurately but also clearly convey the content and essence of a known law, so that they are understandable to everyone to whom the legal provision concerns. But if expressing one’s thoughts accurately and clearly in general is already a matter of talent, and not a matter that is accessible to everyone, or at least given easily: then to perfectly express the right, which has a vital interest for those interested in it, is a matter that truly requires genius. The verbal shell, perfect for ordinary thought, how often turns out to be completely insufficient for the law! How often does this vital interest refine human ingenuity in a law that one does not like, to find reciprocity, ambiguity of expressions in order to reinterpret its literal meaning in one’s favor! Therefore, even if we talk about laws that, from a general point of view, are impeccable, even perfect, it must be said that they are not always guaranteed against reinterpretation, i.e.
from the difference in their understanding: what can we say about imperfect laws, bearing traces of haste, sometimes negligence, especially about ancient laws, outdated even in relation to their external form (language), and especially about laws in the original text written in a language alien to those who use them (there are many of these in church law)! How to establish in such cases a uniform way of interpreting the law, its exact and true meaning?
Obviously, there remains no other possibility than to establish between him and a whole group of other laws of internal connection, to indicate to him a certain relationship and meaning in their entirety, embracing any real relationship of life. For each law, in its essence, strives to embrace some aspect of life, some of its relations, or to supplement, clarify the gap that was influenced by new phenomena of life in the legislation previously published on this subject. “Often, to form the legal form of one life relationship,” says Eagering, “various individual legal provisions must act together: they therefore find their connecting point in this common matter and are located around it like muscles around a bone. A life relationship expressed in this way in legal form can, in turn, be in a dependent relationship to another - to relate to it, for example, as its transitional moment, or as a consequence, or as a species to a genus.
Thus, individual legal relations, which can be the subject of a separate legal discussion, grow together into even larger systematic units - into legal institutions that present us, figuratively speaking, with a strong skeleton of law, to which its entire essence is attached in legal provisions. “The task of science is to explore this articulation of law, to find a real place for both the smallest and the largest” 54 . – Only in this way is it possible to achieve an accurate understanding of very many articles, or individual legal provisions, which in their isolation are often unclear, mutual, and contradictory.
But this is not enough. Law, striving to embrace the most diverse aspects of social life, to define by its norms every newly emerging phenomenon in it - in this, so to speak, pursuit of life, which constantly delivers new and new combinations - new and new relationships - necessarily causes new and new changes in legislation - the external form of its expression; it necessarily makes the latter as changing as life itself is full of changes in its forms. But this change in law takes place in parts, and while its individual parts, under the influence of the demands of life, proceed sequentially from change to change, others remain at rest, in that initial immobility where they stopped, so to speak, in a long-past moment. It is clear from this how little the old law will be understood if, due to some circumstances, it again comes into contact with new legislation created under the influence of new relations of life.
Hence, a very significant part of the legal provisions for their understanding requires historical illumination, the reproduction of those legal relations in the existence of which it was created and under which it was completely natural and understandable.
Thus, it becomes clear that even with the existence of a satisfactory codification of law, many of its individual articles require interpretation, or interpretation - literal, logical, dogmatic and historical. This commentary on laws or codes of law is the first, although the lowest, stage of scientific reproduction or scientific representation of a positive law given at a certain moment. Indeed, for a long time jurisprudence has directed its efforts towards such a comprehensive commentary on legal codes. Both the Roman law of Justinian and the canonical law have come down to us with varied and extensive commentaries.
Paying tribute to the enormity of this kind of work, it cannot be said, however, that their results regarding the knowledge of law correspond in their breadth and depth to the amazing efforts that went into acquiring them. Their main drawback is the absence of an independent system: glossators followed in the interpretation of laws the arrangement given in the code, i.e. chronological or subject, or they arranged their material and comments on it according to an extremely artificial system introduced by Roman jurists, according to which all legal material was arranged into three categories personae, res, actiones - persons, things and actions. In both cases, the result was neither an effective representation of the entire body of law, nor an effective representation of its individual institutions.
The new jurisprudence took a further step in developing the sources of law. It sets as its task the study and reproduction of entire institutions of law on the basis of its sources, fills the gaps formed by them with the help of other sources, and strives to bring individual institutions into an organic connection, so that the system of law thus formed represents a whole coherent organism of its institutions. As was stated earlier, individual legal provisions only in their totality embrace a certain relation of real life and in this property, being brought into connection with each other, form a legal institution corresponding to this vital relation. The task of scientific analysis is to notice and highlight the main elements in a group of legal provisions, turn them into concepts with a definition of their essential and secondary features; “legal provisions discard their form of commands and prohibitions and become elements and qualities of legal institutions.
This is how the concepts of institutions, the essence of legal actions, the properties of persons, things, rights, and units of all kinds are developed from them. This transformation of legal provisions into legal concepts sharply distinguishes the scientific presentation of the law from its presentation in the code. The legislator can limit himself to expressing his requirements in their original immediate practical form, but science has the task of not only putting them in order and explaining them, but also distributing them among the logical moments of the system. The legislator gives us, so to speak, composite bodies, which interest him only from the point of view of their immediate suitability for use; science, on the contrary, undertakes their analysis and decomposes them into simple bodies.
At the same time, it turns out that many apparently different legal provisions are composed of the same elements, traces, can be mutually interchangeable, or that one differs from the other only in one moment, so that instead it is enough to point out only at this point that some legal provisions consist of completely different simple ideological elements and traces; on the contrary, they can arise by themselves through the combination of these elements. Thus, only the analysis of legal provisions leads to knowledge of the true nature of law and its result is that instead of an infinite number of varied legal provisions, science receives a visible number of simple ones, from which it can recreate individual legal provisions upon demand.
But the benefits are not limited to this simplification; the developed concepts are not simple decompositions of given legal provisions, from which only these latter can always be restored: an even greater benefit lies in the acquired through this possibility of increasing the law from itself, of growing it from within. Through the combination of various elements, science can form new concepts and new legal provisions: concepts are productive; they copulate and produce new ones. Legal provisions do not have this fertilizing power; they, as they are, remain themselves until they are brought to their simple constituent elements and through this enter into kinship relations with others, both in an ascending and descending line, that is, until they discover their origin from other concepts and, for their part, themselves receive the opportunity to produce new ones.
Such is the influence that the analysis and systematization of legal provisions has on the law itself; it can be described in one word as the elevation of legal provisions to the level of logical moments of the system. But for life this operation is of the greatest importance; it offers us, so to speak, simple reagents for infinitely complex particular cases of life. Anyone who would like to resolve the latter only with the help of legal provisions would constantly be in difficulty, because the combinational art of life is so inexhaustible that the richest casuistry of the code will seem pathetic in comparison with its ever-new cases. On the contrary, with the help of those few reagents we resolve every case. It would be even closer to call this systematic or logical structure of law its alphabet. The relation of a casuistically composed code to law reduced to its logical form is similar to the relation of the written Chinese language to ours.
The Chinese have their own special sign for each concept; human life is barely enough to study them, and new concepts require them first of all to establish their own special signs. We, on the contrary, have a small alphabet with which we can decompose and put together every word, easy to learn and never putting us in difficulty. In the same way, the casuistic code contains many signs for certain individual cases; on the contrary, law, reduced to its logical moments, presents us with the alphabet of law, through which we can disassemble and depict all, even the unprecedented word formations of life.” 55
This is how modern jurisprudence depicts the task of the science of law. In general, this task is divided into two main parts: historical, a thorough study and putting in order the sources of law: for they are the basis of the entire science of law, and its systematic or logical construction. In relation to the canon law of the Russian Church, both parts of the general task of science are equally important, for, as for its sources, with their extreme diversity and plurality, it is positively impossible to navigate without the assistance of science. The reason for this diversity and plurality lies in the special historical relations of our Orthodox Church.
Being from the beginning essentially an Orthodox-Eastern Church, the Russian Church for a long time was under the strong influence of the local Constantinople or Byzantine Church and in its structure, its discipline and governance it also used the law developed at the councils of this local church. – At the same time, the Russian Church had to receive a definition of its state position from the princes and kings of ancient Rus': then, freed from the influence of the Church of Constantinople, becoming self-governing, autocephalous, the Russian Church, due to the special position of its state Church, in the new period of its history formed a special, very extensive law in the so-called synodal legislation. Thus, the sources of its law, in all their volume and completeness, must allow the following division: 1) the main canonical sources containing the law of the ancient Eastern Church, i.e.
its structure, the basic principles of the discipline; 2) historical canonical sources containing the law of the local Church of Constantinople, which had a strong influence on the management of the ancient Russian Church; 3) historical sources of church and state law of ancient Rus'; 4) synodal state legislation of modern times, representing the current law of the Russian State Church.
All the more important and difficult is the second part of the general task of the science of church law - its scientific systematization: for its task is to build a theory of law based on an accurate study of all these sources. Only under this condition is it possible to accurately and faithfully reproduce the law and fulfill the requirement of modern jurisprudence that each law should have its own system, that the latter should be extracted from itself, and not brought into it from the outside. “For otherwise, it is the logic of a model alien to the object itself, into which it is forcibly squeezed, a network into which every other right could be squeezed in the same way - an element that makes it more difficult than easier to understand the structure of an individual object. The system is unambiguous with the internal structure of the subject and therefore is always completely individual: one law is characterized by one system, another by another.” 56
Scherer, Manuel d. Kirchenrechtes. § 1. Gratz. 1885. B. 1.
"Vestn. Legal Persons." book 23. 1880, pp. XIV–XXI.
“Encyclical. Rights”, page 22: auf dem natürlichen Weg eines… Sinnes und Triebs S. 23.
Wed. Pukhty Kur. Institution, pp. 9–11. § 4, 5.
Robert Mohl in his Encyclopedia of State. Sciences" (translated by A. Popova St. Petersburg 1878) calculates the following public rights of each subject: they are divided into 2 classes: firstly, state civil rights - staatsbürgerliche Recht and, secondly, political rights. The first ones include:
1) the right of permanent participation in the state, the essence of which is, on the one hand, that in the event of alienation by the state of lands into the citizenship of another state, this alienation occurs only with the consent of the persons interested in it, as well as the right to freely leave and be evicted from the state.
2. The right to enjoy the benefits that a certain type of state offers to every person participating in public life. “Arbitrary restrictions on the rights of individuals and entire classes contradict the highest idea of the state and is the greatest untruth on its part. Providing benefits is not therefore such an unimportant thing that can be taken away whenever one pleases; no, this is a formal legal obligation on the part of the state and its head, and their very existence depends on the fulfillment of this obligation. In the event of a proven and irreparable failure of funds (of the state), at least the law of proportionality must be observed. First of all, therefore, it must provide at least what is necessary to support life - namely the protection of rights. This duty of the state in the person of the prince was recognized, for example, by our Novgorodians, when, in an agreement with the prince, they made him obligated not only not to touch their duties, but also to protect them.
3. The right to unimpeded development of personality and social relations. States differ greatly in communicating to private individuals the rights of this kind: some, for example. theocracy and the classical state appropriate to themselves a large part of the human personality, while others, on the contrary (for example, the newest theory of legal states), leave the identity of the individual and social classes almost untouched. However, complete absorption of the individual and his goals by the state and his goal never occurs. The most common claims are the following: a) the right to free, harmless use of spiritual and physical powers for others, at the same time, first of all, liberation from slavery and serfdom; b) the right to enter into voluntary partnerships with other persons to engage in permissible, private affairs. However, the state is authorized to impose special restrictions on the activities granted according to the general rule of the free will of the individual, if complete freedom generates too great a disorder of the state order.
4. The right to fair and moderate behavior of government officials in cases of personal arrest, house search and sequestration of correspondence.
5. The right to secure property.
6. The right to file petitions and complaints if their fair demands remain unsatisfied, or if a right is positively violated.
The political rights of subjects of one or another state are even more diverse, depending on the type of one or another state constitution. For it is self-evident that subjects enjoy different freedom in state affairs in theocratic, unlimited monarchical states, differently in monarchical states with class or popular representation, and even differently in purely republican states.
Participation in state affairs itself can be of three kinds: firstly, they may have the right to legal participation in certain actions of state power - for example, participation in legislation, in establishing the state budget, in concluding a war and declaring peace, which right can be enjoyed either by everyone in the aggregate, or through their representatives. Secondly, citizens can control in some specific form the actions of the government, in order to thus protect themselves from negligence or illegality: thus, Tsar Ivan Vasilyevich established, “that the governor and his tiuns should not judge the court without tselovalniks, but be in court their tselovalnik (i.e.) to the best people and the zemstvo clerk, whose tselovalniks and the zemstvo clerk they will be chosen and brought to a kissing” (Constitutional gram. Ivan Vasilyevich to the Dinsky tiuns and governors of the Russian. Venerable. Part I. p. 129).
In the 3rd, finally, exclusive care of certain state affairs can be provided to all subjects in the aggregate or to individual classes of them - directly or through representatives. This is, for example, participation in certain parts of the regional administration (our zemstvo), in the administration of justice (our juries and peace regulations), in caring for the poor, in educational institutions, etc. (pp. 172–176).
Naturally, the question arises here: how can one then assert that law is the result of reason and moral feeling? But in answering this question, attention should be paid to how long ago the recognition of the natural equality of people ceased to be an issue for the majority? Was not, until the last century, the Negro race considered in the minds of the majority as naturally condemned to slavery and incapable of freedom? It follows that what now appears as obvious ignorance and rudeness was in former times consistent with the requirements of both reason and moral sense. But besides this, the mere consciousness of the rationality and morality of a certain principle is not enough for this principle to turn into a legal position: ideas gain dominance in life only through a long struggle with elements opposing them.
Thus, even before the return of the Gospel teaching on the dignity of man, the Romans clearly expressed the conviction that by nature “all people are free,” but in reality slavery reigned, the legal validity of which was recognized by precisely those who expressed the above-mentioned conviction. It was necessary for the Christian peoples and states themselves to survive thousands of years in order to finally erase from the foundations of their rights the idea of slavery and inequality, which sharply contradicts the gospel. And yet, as the history of Christian states shows, the ideas of Christianity and European humanism achieved dominance only through law, only when they became legal ideas.
Schulte. Die Lehre von den Quellen des katholischen Kirchenrechts. Giessen. 1860. S. 18
Bluntschli, Allgemeines Staatsrecht. 2. V. 1857, München S. 251–253.
P. Kazansky, History of Orthodox monasticism in the East. Part 2. Moscow. 1854. Page 106.
These are the articles of our IX volume about the rights and advantages of churches, monasteries and clergy; such are the articles of Volume XV on sacrilege. Where did the definitions of the essence, properties and divisions of church persons (owners) and objects (church), etc. come from here, if not from canon law?
“Description of this book, spoken by the Helmsman, to dear readers” Helmsman L. Khmk ed. 1653
See The first pages.
This paragraph is based on Scherer: R. von Scherer, Handbuch des Kirchenrechts. Graz, 1885. V. 1 § 10–14.
Glossa added to the words inter solem et lunam of Pope Innocent III the explanation that the dignity of the pope is 47 or 57, or 7744½ times greater than the dignity of the king. Scherer S. 40 note. 37.
The work of Ignatius Reidte can be considered a classic: “Das canonische Recht betrachtet aus dem standpuncte des Staatsrechts, der Politik, des allg. Gesellschaftsrechtes und der seit dem Jahre 1848 entstandenen Staatsverhältnissee.” 1849.
It is customary to call Josephineism the church policy of the Austrian Emperor Joseph II, begun by his predecessor, Empress Maria Theresa. The essence of this policy was the complete subordination of all external church life to the authority of the emperor. A deeply religious and sincere Catholic, Joseph II limited the power of the Catholic Church with his authority as it had hardly ever been limited. Relying on his imperial authority, Joseph II, by his own authority, without asking for advice, much less the permission of the local church hierarchy and even the pope himself, took administrative measures and issued legislative decrees in all areas of church life, which he found necessary for the good of his subjects and the church itself.
Thus, in the field of church teaching, he did not hesitate to ban the bull “Unigenitus” of the pope himself, a bull of purely theological content, discussing the relationship of grace to human freedom; in the field of Divine services - he issued the smallest instructions regarding the performance of church services and church ceremonies; in the same way he issued instructions regarding the composition and delivery of sermons, the education of the clergy, monastic life, etc. This attitude towards the church in the pious Catholic emperor stemmed not only from personal arbitrariness and conviction, but found support in the scientific theories of Austrian politicians and canonists of that time, such as, for example. Rigger, Rautenstrauch, Eibel and others. See Vering's Lehrbuch d. katholischen und protestantischen Kirchenrechti, § 35, 1881.
This is exactly how the state treats the Church in North America.
Arliculi Smalcaldici, Pars. II, Art. IV, App. P. I, Art. III.
Add. to the Ipatiev Chronicle p. 267. Pol. Collection Rus. Years. Vol. II. St. Petersburg. 1843
Confession of Metropolitan Hilarion in Prvbavl. to Creation St. Ot. g. 2 books. 2.
!) Definitions Vladimir. cathedral Rus. Histor. Bible vol. VI pp. 84–86.
Definitions Vladimir. cathedral Rus. Histor. Bible vol. VI pp. 84–86.
Russian East. Bible vol. VI, pp. 529–536.
Additional to Act. Histor. vol. 2, no. 76.
Empress Catherine II, in the Order on drawing up a new code, told the commission that “the property of the sacred laws is to be indispensable,” and therefore excluded the dogmas and basic rules of the Orthodox Church from the range of subjects that required transformation in legislation. Collection zak. Vol. XVIII, 1767. No. 12950, and 1768 No. 13095.
Orthodox Interview 1860, part 1 p. 28: “on the basic principles of Russian Church law.”
See The rite of the crowning of our sovereigns. Holy Observance on the Sunday of Orthodoxy.
See Prayer singing on the day of the coronation of the sovereign emperor and on the day of his accession to the throne.
See the worthy prayer in the liturgy of St. Chrysostom and St. Vasily Vel. In former times, the wishes of the Church were usually directly expressed to sovereigns at their crowning. The Metropolitan, on behalf of the entire Church, said to the Tsar: “Have the fear of God in your heart and keep the Christian faith of the Greek law pure and unshakable. To the holy cathedral church and to all the holy churches have faith and fear of God and give honor, since in it the second King was born from the holy font with a spiritual holy birth. And again I say to you, O God-crowned Tsar: have full wisdom in the Orthodox dogmas, honor your mother Church, who bore thee for the Holy Duss, so that you yourself will be honored by her.
Spiritual Regulations added point II and Last, per week. Orthodoxy.
These are the church statutes. book Vladimir, Yaroslav; statutory charters of other princes; articles on church affairs in the law books of John III and IV; proposals of John IV to the council of 1551; Tsar Alexei Mikhailovich to the cathedral of 1667, etc.; letters granted in favor of church places and persons, etc.
Arch. expeditions vol. I No. 225, 227, 241, 308, 321, 360.
Act. Histor. vol. I No. 285, 161, 204.
Act. Arch. Exp. Vol. I. No. 9, 80, 201, 241, etc. Ak. East. vol. I No. 39, 41, etc.
Collection Law, vol. I No. 412 Code ch. I.
Act. East. vol. I No. 39, 61. Additional information. to them vol. II No. 76.
Stoglav. p. 46. Ed. Orthodox Interview
In this regard, the Spirit gives a remarkable testimony. The regulations, when one of the advantages of the Synod over the patriarchate is the right to try the chairman himself, while to try the patriarch requires the convening of a council and, moreover, with the participation of other patriarchs. So clearly at that time it was recognized who had the supreme right of judgment over the highest clergy.
Additional to Act. East. No. 76, p. 191.
Regulations Enter. and part I clause 3, 7.
St. Zak. Vol. XV def. and pres. prest, clause 3 art. 46.
St. Zak. vol. XIV app. to Art. 147 lips on censorship art. 3.
Eagering. Spirit of Rome. rights at different stages of its development, pp. 30–35.
Eagering. Quote. book pp. 30–35.
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