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Reception in ecclesiastical law

Velichko A.M.

Doctor of Law

Juridical science that set its goal to describe and study the objective reality has no right to exclude phenomena connected with existence and activity such a numerous “public union” (as a modern jurist would call it) as a Church, from object of its research. We would remind you that the issue is not only a union that influenced greatly on our state’s modern political and social life. The multifaceted European culture taking the road of secular society only relatively lately, owes its formation to Christianity. The Church has its religious doctrine, history, traditions, law after all. And handling of church law, study of its peculiarities has objective legal-theoretical and legal-historical interest. All the more so because the last researches in that area for obvious reasons were ceased nearly hundred years ago except for certain rare ones that appeared in recent years.

However, there is a practical aspect in full here. The government, implementing the civic right of conscience and religious freedom, in the name of supreme political power has to know what real consequences one or another legislative act, infringing Church’s interests and sphere of activity, will have. The legislator that tries to regulate such a delicate sphere of person’s spiritual life, should, of course, proceed from principles, categories and values those church mentality operates. This is possible only in the case where they are known: you need to live up to Church’s reason and not to “analytics” of the secular man to comprehend an ecclesiastical law.

The researcher, taking the liberty of handling such a difficult subject, can not disregard the most striking feature of ecclesiastical law that practically does not show up in so called secular law of states. The issue is a reception as a peculiar perceptual process by church sense of justice of one or other rules of church life, the base of church lawmaking and law enforcement.[1] The author of this text has no illusions about disclosure of all nuances of the chosen topic within the scope of one article. Nevertheless, he hopes that this work, with its entire shortcomings that readers and specialists can judge, will make it possible to estimate certain peculiarities of the same canonical (church) law, those absent in secular law of the state, and to detect the reason of distinction between one law and another.

 

I. Reception and church lawmaking

Apparently, the term “reception” comes from Latin words receptare – “to accept” and recepta sentential – “legal decree, generally established view”. Reception in juridical literature is usually understood as historical process of adoption of foreign law by certain nation or nations[2]. But this term contradicts the content and meaning of reception, those it has got in church (canonical) law. Before further exposition, we can not of course forget that reception becomes apparent not only in ecclesiastical law, but also significant for Christian religious doctrine and theology in whole. As is known, no Christian dogmas, formulated by Ecumenical Councils were accepted by the Church without its reception (preliminary or subsequent) by church society. Moreover, any Church’s activity, becoming apparent in outside world in one visible form or others, connected inseparably with the reception.

Though researches – canonists are concordant with the fact that Scripture commandments form divine right (jus divinum), nevertheless canon law body is not restricted only to jus divinum[3]. As a well-known Russian canonist A.S. Pavlov (1832-1898) indicated, regulations of divine right do not form affirmative ecclesiastical law code, fixed external Church order in all its particulars once for all. They are fundamental principles, the Divine Principles of affirmative ecclesiastical law that is formed by the Universal Church and by certain local churches[4]. Thereupon the Church, as the only interpreter of rules of divine law from the earliest time and very often faces the challenge of separation of wrong rules, even if they are accepted by authoritative bodies and persons of the church, from regulations that meet jus divinum in full measure and are able to regulate relations between its members as it follows from spirit and content of Jesus’ teachings[5]. Moreover, even the fact of direct adoption one or another rule from the Holy Scriptures texts does not evidently indicate that this regulation has the universal nature. There is many examples in the history of the Church, when a definite resolution, commanded even by Apostles, becomes the part of “dead laws” and is substituted for new ecclesiastical law.

The supposition that the Apostles were mistaken is wrong: according to the teaching of the Church, they, as the people endowed with divine grace, could not (consciously or unconsciously) command coreligionists wrong laws[6]. The matter is that Spiritual texts contain different regulations. Some of them are suitable only for certain period of time, as, for example, many regulations of the Old Testament. Quite often the Bible expounds concrete regulations, assuming the possibility of their direct and immediate use. After all, the Holy Scriptures contain many certain rules (sometimes they are not connected outwardly), those gradually, as the church sense of justice develops, form “mosaicly” into universal regulations. Mentality, originally brought up in pagan traditions simply can not always to notice and understand such a regulation apart from observing it. The mentality is somewhat blind, and the rule, meant for certain cultural level, is empty for it yet. Therefore the Apostles expounded often the definitions, more understandable for pagan non-Christian mentality. They, on the one hand, did not contradict the generalities of close texts and, on the other hand, involved the moderate rule that later revel itself in absolute completeness. In this respect the words of Apostle Paul from the First Epistle to Corinthians become clear: “Now, brothers, I was not enabled to speak to you as spiritual men but as worldly ones, as babies in Christ. Milk I fed you, not meat, for you were not yet able.[7]

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