Andrei Şaguna and “The Organic Statute” – V.1 Andrei Șaguna`s canonistical works


Even if the memory of the Metropolitan Andrei has become “diluted” in people’s consciousness[1], and the Communist ideology has created an “Andrei Şaguna myth” rather than a real image of his personality, the theological memory has preserved two of his immortal deeds, still visible nowadays: the reestablishment of the Metropolitanate of Transylvania[2] and its organization through “The Organic Statute”.

However, the principles of the entire church organization dealt especially in Şaguna’s canonistical works are not known and appreciated at their true value. The metropolitan’s dimension as a canonist, hardly negligible, cannot be said to have overwhelmed the Romanian ecclesiastical spirit of the last sixty years at least. This happened in spite of the fact that “through his works on canon law Şaguna introduced the study of canon law in Romania, familiarized both the clergy and the lay people with the canons, of which they had barely heard before.”[3] Moreover, “for those who are acquainted with Şaguna’s activity it is certain that the great restorer of the Transylvanian Metropolitanate is one of the best canonists of the Orthodox Church. An undisputed master of Serbian, Greek and Russian canonistical literature, Şaguna was able – also with the support of his historical knowledge – to have access to the genuine spirit of the origin and evolution of the Universal Church and to understand, through a deep intuition, which must be the apostolic character of the Church institutions and to what canonical extent the ecclesiastical organization can be susceptible of a normal evolution.”[4]

The Romanian historian Nicolae Iorga stated: “Still, his books have no lasting value, nor is there any beauty that one could find in them. […] Şaguna’s writings were meant to constitute the first learning elements for the common people and represent a strong urge rather than a monument, coming from his high position.”[5] This is an opinion that undoubtedly proves to be superficial when approaching Andrei Şaguna’s works, out of which those related to canon law are far from being “the first learning elements for the common people”.

Nicolae Iorga’s statement can have a point only as far as the accessibility but not shallowness of Şaguna’s works is concerned, caused not by the fact that the scholarly bishop found it hard to write pretentiously (on the contrary!) but by his wish to write usefully, to make himself understood not only by the élite, but by all the faithful, because “he was preoccupied not only with the scholarly aspects, but even more with the moral ones.”[6]

As a matter of fact, Andrei Şaguna considered the canonistical writings as a part of the Church teachings and, implicitly, of his duties as a bishop, stating in the preface of the manual of canon law, from 1854:  “Among the many duties I have undertaken as a bishop is the one to preach the Word of the Lord and the institutions of the Holy Fathers, as well as to observe the Law of God and teachings of the Church in holiness, and by so doing to advance the true spirit of our Orthodox Church for the eternal redemption of all those who were entrusted to my episcopal guidance.”[7]

V.1. Andrei Şaguna’s canonistical works

V.1.1 Brochures on the reactivation of the Metropolitanate of Transylvania

Andrei Şaguna’s first writings which imply to a certain extent canon law are, in fact, brochures meant to justify, firstly historically and secondly canonically, the legitimacy and necessity to reactivate the old Metropolitanate of Transylvania: “Pro-Memory” (“Promemorie”), “Addendum to Pro-Memory” (“Adaos la Promemoria”) and “Memorial” (“Memorialu”).[8]

“Pro-Memory”[9] is a brochure meant to convince the Viennese upper circles about: the existence of an autonomous (independent) archbishop and metropolitan of the Romanians within the Habsburg Empire, having his see at Alba-Iulia (former Bălgrad)[10]; that metropolitan had three suffragan bishops, namely those of Maramureş, Silvaş and Vad; he was elected by the priests; the canonical authority of the metropolitan see of Alba-Iulia was the Patriarchate of Constantinople, whose patriarch or representative – the Wallachian metropolitan of Targovişte – was in charge of consecration and enthronement of the metropolitan of Bălgrad. Andrei Şaguna supports his statements with information taken from: Alexandru Geanoglu Lesviodax – the author of a church history -, Engel Pál – the author of six volumes on the history of Hungary -, and Petru Maior – another author of a church history. The brochure ends with a demand to the emperor to allow the convening of an assembly (synod) of the representatives of Romanians of Transylvania, Bukovina, Timişoara, Arad and Werschetz in order to gain their historical right to autonomy, based on canons. However, it did not receive any answer from Court.[11] The Serbian patriarch was handed the brochure also, but “Karlowitz showed no interest in that”[12].

A year later, “Pro-Memory” was completed with a new brochure, “Addendum to Pro-Memory” (“Adaosu la Promemoria”), printed in Romanian[13] and German, at Sibiu. This brochure brings new evidence about the age of the Transylvanian Metropolitanate by reproducing four diplomas awarded by the Hungarian kings László V (14401457)[14] and Mátyás Hunyadi (1458-1490)[15]. Those proved the existence of an archbishop and metropolitan over the Orthodox Romanians in Transylvania ever since the fifteenth century. There follows a short history of the Transylvanian Orthodox Church in the sixteenth and seventeenth centuries, ending with a list of the Transylvanian bishops from 1783 up to Andrei Şaguna, but containing “some gaps and chronological shortcomings”[16].

On April 20, 1851, Bishop Andrei Şaguna addressed the Ministry of Public Worship a new “Memorial” (“Memorialu”), written in German and printed at Vienna, during the Easter holiday of the conference of the Orthodox bishops of the monarchy. Later, it was published in Romanian too, at Sibiu.[17] He added now canonical arguments to the historical ones in the first two brochures, with the purpose to sustain the reestablishment of the Metropolitanate. Then he showed how the old metropolitan see of Alba-Iulia (Bălgrad) perished, how the Orthodox Romanians came to be under the jurisdiction of the Serbian Metropolitanate, and which the relationships between the two ethnic groups during the eighteenth century were.

V.1.2 Systematic canonistical works without “Compendium”

Besides the above-mentioned printed petitions with a canonistical character, Andrei Şaguna wrote also systematic canonistical works. These are the following, in a chronological order: “Useful Information about Marriage Affairs” (“Cunoştinţe folositóre despre trebile căsătoriilor”), “The Elements of Canon Law” (“Elementele dreptului canonic”), “Anthorismos”, “Compendium”, and “Enchiridion”.[18]

“Useful Information on the Marriage Affairs” (“Cunoştinţe folositóre despre trebile căsătoriilor”)[19] is the first Orthodox book of matrimonial law in Romanian. It was edited in the same year as “The Elements of Canon Law” (“Elementele dreptului canonic”) and is organized in thirty-six paragraphs; it sprang from a pastoral necessity, namely the “empirical, often arbitrary character of the rules applied in the important field of marriages”[20].

After reading this short informative guide on Orthodox matrimonial law, it is quite clear that the regulation of marriage in the Transylvanian Orthodox Church in the Austrian Empire had much more in common with the current marriage regulation of Latin and Oriental Catholic Churches[21], as the matrimonial law of the Romanian Orthodox Church nowadays[22] has. The whole problematic on marriage affairs was later resumed in “Compendium”, chapter II, section 7: “On the Mystery of Marriage”.[23]

The protopope – as a follower of the chorepiscopos[24] of the primary Church – and the protopopiate see – as his administrative organ – had in Andrei Şaguna’s church organization the competence of the court of first instance in issues of matrimonial law.[25] As these competences are annulled by the present-day regulation of the Romanian Orthodox matrimonial law[26], the institutions of protopope and protopopiate see have lost much of the importance they had in the nineteenth century.

The manual “The Elements of Canon Law” (“Elementele dreptului canonic”) was first edited at Sibiu, in 1854, being re-edited a year later.[27] Although it has gaps, the work is a first attempt of writing a manual of canon law, so necessary to the theological educational system that was in the process of organization at Sibiu. Metropolitan Nifon of Wallachia had published in 1853 a “Manual of Church Law Code” (“Manual de pravilă bisericească”), but that was “only a short form of the universal canons”[28].

 “The Elements of Canon Law” were born “of the conviction that the best way to spread the systematic and essential words related to the Church affairs is a manual which comprises all the ecclesiastical life. We have therefore realized the necessity of a book for the clergy and faithful to see what and how our Church is; because the unpropitious times have erased many things, and have destroyed many things, and have made for forgetting many things!”[29] The subsequent improvement of this manual will lead to the systematic and complete work of 1868, the “Compendium”.

Friedrich Heinrich Vering[30] considers this work of Andrei Şaguna to be a processed version of Jeftimije Jovanović’s book “The Principles of Canon Law of the Old Orthodox Eastern Church” (“Načatki Cerkovnago Prava Drevnyja Pravoslavnyja Vostočnyja Cerkve”/“Principia juris ecclesiastici veteris ortodoxae orientalis ecclesiae”) that appeared at Novi Sad, in two volumes, in 1841 and 1844.[31]

However, Ioan Mateiu analysing comparatively both works[32] concluded: “I could not verify this opinion. The truth is that the structure of the book is almost the same, but this structure is to be found in so many canon law manuals. We find it even in Milaš’s work, with some alterations. Essential are the conception and the approach, and here we notice differences and chapters that Ioannovics [Jovanović] does not have, for instance regarding the canons and their collections, then Şaguna’s doctrine on the temporary value of the disciplinary canons. Actually, Ioannovics treats things almost fragmentarily, while Şaguna does not. If Vering’s statement were true, we do not understand why Şaguna should have hidden that, as long as we see that he indicates all the sources used.”[33] Indeed, in the preface of “The Elements” the author specifies that he gathered “all my notes that I have made for almost twenty years, since I started to serv the Church”[34] and next he enumerates the canonical sources he used to compose this book: “The notes I have mentioned were taken from ‘Pravilă’ (‘Law Code’)[35], ‘Kormčaja [Kniga]’ (‘The Guiding Book’)[36], Beveregius’ ‘Syntagm’, Archimandrite Jovan Rajić’s[37] manuscript on synods, then I compared all these with ‘Pedalion’[38] and I wrote them according to it, that is why all the canons are quoted after ‘Pedalion’.”[39]

“Anthorismos” is a polemical work edited first in Romanian[40] at Sibiu, in 1861, and later, in 1863, in German[41] too, in response to a brochure which appeared at Czernowitz, in 1861[42], and had as starting point the Viennese Court’s intention -vigorously promoted during the Neoabsolutism – of sustaining its policy of centralization also by strengthening the control over the Orthodox Church in the monarchy, after the model of the Russian Empire – caesaropapism[43] – established by the Tsar Peter the Great (1682-1725).

In addition to the excellent argumentation of the Church’s autonomy in the state, “Anthorismos” also refers to some of the Orthodox canonical principles that Andrei Şaguna defended and promoted intensively: canonicity, pentarchy, hierarchical synodality, mixed synodality.[44]

The author’s erudition, his capacity to clarify things (at the risk of being acid!), the vivacity and certainty by which he always anchor himself in the genuine spirit of the Church make “Anthorismos” into a short treaty of ecclesiastical polemics, that should not be ignored by the theologians or at least by the contemporary canonists. Logical, historical, canonical arguments are so cumulated as to counteract, in fact, a bishop’s (Eugeniu Hacman of Bukovina) wish to climb the hierarchical ladder by receiving as a “gift” a metropolitanate created by the political power according to criteria other than canonical ones, so that he would serve the monarchy’s political interests rather than those of the Church. What Andrei Şaguna thought to be the angular stone of the ecclesiastical organization – the canonicity – seemed unnatural to some Bukovinian clergy, who tried by their “Wishes of the Orthodox Clergy”, on the one hand to reject truths considered incontestable by the Transylvanian bishop, and on the other hand to establish as canonical principles some simply misfortunate historical occurrences.

The “Enchiridion”[45] is the first Romanian collection of canons. Before Andrei Şaguna only “Law Codes” (“Pravile”) had been written in Romanian, mixed collections of canons and state laws, corresponding to the Byzantine nomocanons. He made the transition from the law codes to the collection of canons proper, because in the Austrian Empire there was no nomocanonical tradition.[46] Published on the occasion of the twenty-fifth jubilee of ministry in Transylvania, “Enchiridion” is dedicated by the author to “Thee, dear clergy and faithful of our Metropolitanate”[47]: “In this year [1871] my Romanians celebrated my jubilee of twenty-five years as an ecclesiastical leader in Transylvania. On this occasion I took out my canonistical flag which contains the canons of our Orthodox Church with explanations. And I dedicated this work to our Orthodox Romanian people […] for to be seen how deeply I am connected to our Orthodox Church.[48] Due to its commentaries and the alphabetic index the “Enchiridion” appears useful for to read the “Compendium”, as an attachment of it.

The imperative of canonicity in the Orthodox Church, to which the “Enchiridion” is subordinated, is supported by a strong argument in the introduction: the canons are superior to the civilizing science and knowledge of that age. In order to sustain the argument eight principles are given as examples, among which two were really superior, even revolutionary in the nineteenth century’s ecclesial context: the synodal principle – an essential element of the Orthodox Church’s theology, canon law and organization – that infringes both the clericalism and the privileges derived from the right of patronage, and the principle of using the language of the faithful in the liturgical and administrative life of the Church as well as the translation of the Bible in the national languages in order to be read by the believers.[49]

V.1.3 The “Compendium” – a remarkable work within the Orthodox canonistic

The “Compendium” was published in 1868 at Sibiu in Romanian[50] and in German translation[51]. Although Friedrich Heinrich Vering considers it is written in many cases according to Protestant views[52], when analysed in its historical background it proves to be a special work in the Orthodox Church’s literature, a real book of Orthodox canon law, structured in 489 paragraphs (§). Highly spoken of in international publications[53], it comprises Andrei Şaguna’s entire canonistical doctrine and proves “a great and profound erudition which combined with an admirable stylistic clarity make this work a classical one”[54]. Shortly after its editing it was translated into Russian too, published in the magazine of the Theological Academy in Saint Petersburg and finally edited in a volume, in 1872[55].

As the author himself clarifies in the prologue, apart from the introduction – the notion, definition, origin, evolution, necessity and the sources of canon law – the work has three parts: I. Internal canon law, II. External canon law, and III. Legislation, administration, and ecclesiastical leadership. Both the introduction and each of the main chapters are preceded by a biblical quotation, called “the principle” of that respective chapter.

Still in the prologue the readers are introduced to the fundamental ideas that guided the author in composing the “Compendium”[56]: the work was drafted in the spirit of originality and genuineness of the primary institutions of the Church, as they were founded by Jesus Christ and then developed by the Apostles and Church Fathers; Jesus Christ is the founder, the head and the legislator of the Church, therefore the founder of the canon law; the synodal or constitutional principle is grounded by Christ Himself and developed by the Apostles, who continue on the basis of synodality the advancement of the material of the canon law initiated by Christ; the Apostles’ followers are the bishops and they have continued the subsequent advancement of the canon law by taking their decisions in a similar manner, the synodal one; the bishops’ activity and the advancement of the Church after the Edict of Milan (313) are reflected in the most obvious way by the Ecumenical Councils and local Synods, whose fruits are the canons – the culminating point of the canon law.

The corollary of all these fundamental ideas is: “Thou shall see for thyself from the canon law about the dignity of thy individuality to which the Church’s institutions raise thee, giving thee the right to elect, directly or indirectly, observing the canonical requirements, all the clergy from deacons, priests and protopopes to bishops and the metropolitan, and this right will convince thee ‘that we are fellow workers for God’ (1 Corinthians 3.9) …” [57]

The same as in the case of “The Elements of Canon Law”, in “Compendium” Andrei Şaguna enumerates his sources of information, apart from the Bible and the canons: the interpretations from “Pedalion”, the commentaries of John Zonoras[58] and Theodore Balsamon[59], Matthew Blastares’[60] “Syntagm”, as well as the works of  Bingham and

Heineccius[61]. Moreover, he wants to make clear that apart from these “I have not used any other sources or books”[62], nor any of the particular works belonging to the patriarchates (local churches). The latter works would have been useless if they corresponded to the sources used, and if they not “then I would have been unable to use them, because they are without any value and without any power, and that is why each of us is entitled to blame any canonistical works or patriarchate’s [local Church’s] writings if they do not correspond to the Holy Bible and positive canons.”[63]

The algorithm which describes the Church power from the Orthodox point of view[64] is followed by the author for to organize the content of the book. In order to express the content of this power as appropriately as possible, a trichotomical division was adopted, after Jesus Christ’s threefold activity (Prophet, Bishop/Priest and King)[65], that is: teaching, holifying and leading power (potestas magisterii, potestas ministerii, potestas jurisdictionis)[66]. The leading power is subdivided, in its turn, into three sub-branches or functions: legislative, executive and judicial, thus resembling the ways in which the state’s public power manifests itself.[67]

From the viewpoint of the content, the “Compendium” can be seen as comprising besides the introductive notions (§1-§20) all the fundamental themes of canon law. The first part contains: Orthodox ecclesiology – as fundament of the entire canonical organization (§21-§29) -, potestas magisterii/munus docendi, including an approach on sacred places and times (§30-§46), potestas ministerii/munus sanctificandi or the law of the Sacraments (§47-§130), constitutional law with the emphasis laid on the election of the clergy of all ranks by the faithful (clergy and laymen) – as a fundamental constitutional ecclesiastical right -, but also on the participation of the believers in the administration of the Church goods (§131-§292). The second part is, in fact, a chapter of Orthodox ecclesiastical public law (§293-§312).[68] The third part deals with such problems as potestas jurisdictionis/munus regendi, with all its three sub-branches or functions: the church legislative power – synodality as fundamental source of Orthodox canon law, the Ecumenical Councils and local Synods and their canonical decisions, the Orthodox Canon Law Codes and the Byzantine canonists (§313-§368); ecclesiastical economical administration or Orthodox patrimonial law, and the organs entitled to exercise this power within each ecclesiastical administrative unit (§369-§414); the ecclesiastical judicial power – ecclesiastical procedural law, delicts, the execution of ecclesiastical judicial decisions (§415-§489).

Some approaches have to be especially identified while dealing with such themes:

For instance, the stavropegic and dedicated monasteries, a hot subject in nineteenth century Romania, are presented as non-canonical, against the opinion expressed by Theodore Balsamon, in his commentary on apostolical canon 31.[69] The secularization of monastic properties by the state, another theme of the time, is presented as an abuse just as anti-canonical as that.[70] If the stavropegic and dedicated monasteries infringe the Orthodox canonical principle of internal eparchial autonomy, the secularization infringes the same principle from an external viewpoint – it is an abuse of the state against the Church -, but also the ecclesiastical constitutional right of administration of the Church’s goods by the faithful (clergy and laymen).[71]

The right of patronage – the appointment of the clergy by the donors or church founders – is also considered to be anti-canonical and directed against the fundamental ecclesiastical constitutional right to elect the clergy of all ranks. Emperor Justinian’s Novella 123 according to which the one who founds the church and undertakes to support its future priests has the right to appoint its respective celebrants is presented as being null for the Church, as long as no Council (namely the Fifth Ecumenical Council from 553, summoned by Emperor Justinian himself and then the Ecumenical Quinisext from 691, the Seventh Ecumenical Council from 787 and the regional Synods of Constantinople from 861 and 879) received it in its canonical decisions.[72]

One cannot ignore, in the chapter on ecclesiastical public law, Andrei Şaguna’s ecumenical creed, his urge to an inter-confessional cordiality which is active, not just tolerant, without any pretence of supremacy or hegemony of any confession. The inter-confessional relationships must be based on Christian love that embraces both the friend and the enemy, the different confessions having do not forget two essential common things: the same shepherd (Jesus Christ) and His word (the Bible).[73] This ecumenical creed is an element not very familiar to the ecclesiastical mentality of the middle nineteenth century, especially in the Austrian Empire.

It is also important how Andrei Şaguna treated the sources of the Orthodox canon law. Speaking about those he indicated two groups: originary or primary sources (the Gospels) and secondary sources (the Apostles’ deeds and writings, the apostolical canons and those of the Ecumenical Councils and regional Synods as well as those of the Holy Fathers authorized by canon 2 of the Quinisext Ecumenical Council). In addition to this he mentions “adminiculi”[74], this term including: the Old Testament, the Byzantine canonists’ interpretations or commentaries, the Holy Fathers’ canonistical writings recorded in “Pedalion”, the traditions and customs of law approved by the Church as being canonical, as well as the legislation of the political power as long as it does not infringe the Church’s canons and institutions.[75]

With the secondary sources of canon law Andrei Şaguna approaches the central theme of his work and the key note of his entire church organization which is the synodality.[76] The synodality is mentioned not only in the introductory part, in the section dedicated to the sources of Orthodox canon law, but it is amply treated and analysed in “Compendium” in the chapter dedicated to the legislative power of the Church.[77]

An intrinsic element of the Orthodox Church “from Christ Himself, Who promised the Apostles and through them their followers and all the Christians that ‘for two or three have gathered together in His name, there was He in the midst of them’”[78], the synodality is the fundament not only for the legislative process in the Church, but also for all its fields of action: “The synodal form in the Church affairs expands itself not only toward legislation, but also toward all of the functions of the social elements in the Church organism such as the aspects related to the economical administration of the Church, and toward its leadership…”[79] Only the bishops participated in the synods dealing with dogmatic problems or those examining the newly-elected bishops, whereas in the synods dealing with administrative, economical, philanthropical matters or those concerning the election of the clergy from patriarchs to deacons together with the bishops participated the representatives of the clergy and of the laymen too.[80]

The “Compendium” treated the synodality especially as fundament of potestas jurisdictionis/munus regendi and by the provisions of the “Project of Regulation”[81] the synodal principle in its widest meaning was materialized by Andrei Şaguna in the practice of the Transylvanian Orthodox Church.

V.1.4 The theological foundation of the Orthodox canon law

In the context of the chapters dedicated to the synodality one can implicitly find the Orthodox answer to the issue of the theology of canon law, of its theological foundation.[82] In Orthodoxy has never been any problem of legitimacy or any contesting of the canon law[83] for the very reason that, once the ecumenical synodality closed (at the Constantinople local Synod of 879), the canonical Code[84] accepted by the entire Orthodox Church closed. Any further decision of any local Orthodox Church, conditioned by the compliance with the general canons, is valid only for that Church until the respective norm will be recepted by entire Orthodoxy.[85] Moreover, what Orthodoxy considers to be its canonical Code practically includes all the decisions of the Ecumenical Councils (dogmas, liturgical, moral, and organizational norms), not only strict canonical norms, as in the Western acceptation of the term. This cohabiting of canon law (strictly speaking) and dogmas makes clear the theological foundation of the Orthodox canon law and confers it, at the same time, the stability and continuity which the dogmas have ever in the Orthodox Church.

The supreme legislator in Orthodoxy is Christ, and his followers – the Apostles and then the bishops – took legislative measures valid for the entire Church only in synods, explaining the Gospels’ “laws” out of the necessity to fulfil the purpose of the Church. The form of Christ’s legislation is divine[86], the form of the Apostles and their followers’ legislation is synodal, synodality itself being a divine institution[87]. That is why, in Orthodoxy, canons are considered “Holy and Divine”[88].

Actually, the discussions in Western Europe on the foundation of canon law have their roots in the papal decretals. Martin Luther did not reject the canon law entirely, the undivided Church’s canons, but just the decretals displayed by the popes.[89] Then, Rudolph Sohm only took a step further, contesting the canon law entirely.[90] Therefore, the deviation from synodality – as form of legislation in the Church – led to the discussion on the legitimacy of canon law itself.

The fact that the Orthodoxy is maintaining itself, to this day, in the strict limits of the canons devised by the Ecumenical Councils of the undivided Church conferred it not only notable continuity of dogmas, of doctrine on the apostolical basis, but also the implicit stability of the canon law and discipline.[91] Although there have been exceptions to strict canonicity (caesaropapism, clericalism, autocephaly – as it was interpreted in the nineteenth and twentieth centuries -, decisions of local Churches made not always within the limits of the canons), they are just exceptions that confirm the rule; throughout the time only strictly canonical solutions have survived. “The Holy and Divine Canons” applied in the spirit of Oikonomia[92] represented the antibody by which the Orthodox ecclesial body – not necessarily special measures and disciplinary ecclesiastical organs – rejected or minimized without convulsions many anti-canonical innovations or undisciplined deeds.

Unlike the Western Church, Orthodoxy has not formulated its legislation and canonical discipline according to the rigid judicial pattern of the classical Roman law[93], but to the Byzantine law, at the basis of which was the Roman law of the sixth century, that is Emperor Justinian’s whole compilation and the work of the other Christian Byzantine emperors. Even in the conditions of the so-called “Byzantine symphony state-Church”, the emperors’ attempts to legislate in the Church had to go through the fire trial of synodality; what was left valid in the Church was only what the synods recorded expressis verbis in their decisions.[94]

The Orthodox canons have no much to do with the strict judicialism of the civil laws, they were not elaborated and are not applied in the same way as those laws. The canons are not applied literally but according to (canonical) Oikonomia, for the purpose of man’s spiritual healing, which is the meaning of Christ’s embodiment and resurrection as part of the divine healing Oikonomia. Canonical Oikonomia and not judicial precision is intrinsic to Orthodox canon law. Andrei Şaguna does not use in “Compendium” or in other canonistical work the term “Oikonomia” but the analogy of the body-soul relationship in order to explain the difference between civil and canon law.[95] The canon is different from the civil law as the soul is different from the body. If the law has mainly a punitive character, going as far as the capital punishment, the canon has a corrective character “shall punish even the vilest sinner with a view to make him come back, which means repent and be alive”[96].

The rejection of the excessive judicialism borrowed from civil law and of the arbitrary measures (be they patriarchal or imperial) which did not comply with the canonical Code of the first millennium, besides the maintaining of the spiritual freedom in the divine-human institution of the Church protected the Orthodox Church from the extreme Western methods of maintaining “the discipline of faith”[97].

These two elements specific to the Orthodox canon law: its elaboration within ecumenical synodality and its appliance in an economic, flexible way confer it a special individuality which, old-fashioned as it may seem, protected it from radical denials, fluctuations and syncopes, ensured its continuity and, even more, proves it to be useful to the contemporary rigid world, which sees the faith itself in a technical way.

[1] J. SCHNEIDER, Der Hermannstädter Metropolit, 227: “Die Werke und Reformansätze Andrei Şagunas sind heutigen orthodoxen Priestern und Laien so gut wie unbekannt; sogar die Studenten der Hermannstädter orthodoxen Fakultät, die den Namen Şagunas trägt, kennen kaum die Lebensdaten ihres berühmtesten Metropoliten.”

[2] The reestablished metropolitanate and implicitly Andrei Şaguna’s memory were publicly invoked, maybe more than ever, in different tones, in the Romanian mass-media of all orientations, during the heated debate generated by the sudden synodal decision of November 4, 2005, of dividing the Transylvanian Metropolitanate (the follower of Andrei Şaguna’s Metropolitanate) into the Metropolitanate of  Sibiu and Covasna-Harghita with the residence at Sibiu, and the Metropolitanate of Cluj, Alba-Iulia, Crişana and Maramureş with the residence at Cluj-Napoca.

[3] N. DOBRESCU, Mitropolitul Andrei Şaguna, 569.

[4] I. MATEIU, Cercetări privitoare la Constituţia Bisericii Ortodoxe din Ardeal, 35.

[5] N. IORGA, Oameni cari au fost, 45.

[6] R. CÂNDEA, Andreiu Şaguna, 186.

[7] Andreiu Baronu de ŞAGUNA, Elementele dreptului canonic, 21855, III.

[8]  See also N. CHIFĂR, Apărarea dreptului istoric privind restaurarea Mitropoliei Transilvaniei, 138-143.

[9] See Andreas SCHAGUNA, Promemoria über das historische Recht der nationalen Kirchen-Authonomie der Romanen morgendländ. Kirche in den k. k. Kronländern der österreich. Monarchie, Wien 1849, 15 pages; Andreiu ŞAGUNA, Promemorie despre dreptul istoric al autonomiei bisericeşti naţionale a românilor de relegea răsăriteană în ces. reg. provinţii ale Monarhiei Austriace, Sibiiu 1849, 15 pages (Cyrillic letter).

[10] In this brochure Andrei Şaguna dealt especially with the metropolitan see of Alba-Iulia, but he also mentioned the episcopal see of Bukovina.

[11] Cf. M. PĂCURARIU, 100 de ani de la reînfiinţarea Mitropoliei Ardealului, 819.

[12] A. ŞAGUNA, Memoriile, 28.

[13] Andreiu ŞAGUNA, Adaosu la Promemoria despre dreptul istoric al autonomiei bisericeşti naţionale a românilor de relegea răsăriteană în ces. reg. provinţii ale Monarhiei Austriace, Sibiiu 1850, 23 pages (Cyrillic letter).

[14] Utószülött László/Ladislaus Posthumus (14401457), Archduke, king of Hungary as László V, king of Bohemia as Ladislav; duke of Austria.

[15] Mátyás Hunyadi/Matthias Corvinus (1458-1490), King of Hungary (1458) and Bohemia (1469).

[16] M. PĂCURARIU, 100 de ani de la reînfiinţarea Mitropoliei Ardealului, 820.

[17] See Andreiu Baron de ŞAGUNA, Memorialu, prin care se lămureşte cererea Româniloru de religiunea resăriteană în Austria pentru restaurarea Mitropoliei loru din punctu de vedere a Ss. Canoane. Aşternutu c. r. Ministeriu pentru Cultu şi Instrucţiune 1851, Sibiiu 1860, 23 pages (Cyrillic letter) (=Andreas Freiherr von SCHAGUNA, Denkschrift, wodurch die Bitte der Romanen des orientalischen Glaubens in Oesterreich um Herstellung ihrer Metropolie aus dem Gesichtspunkte der Kirchensatzungen beleuchtet wird. Dem k.k. Ministerium für Kultus und Unterricht überreicht 1851, Hermannstadt 1860). Cf. also: “Memorial, prin care se lămuresce cererea românilor de religiunea răsăriténă în Austria pentru restaurarea metropoliei lor din punct de vedere a ss. canone, – aşternut c. r. ministeriu pentru cult şi instrucţiune în 1851, de Andreiu Bar. de Şaguna, episcopul bisericei răsăritene în Ardeal”, in: Il. PUŞCARIU, Metropolia, colecţia de acte, 88-97 (Latin letter).

[18] Some authors include the “Manual of Pastoral Study” (Andreiu Baronu de SIAGUN’A, Manualu de studiulu pastoralu, Sabiiu 1872 7+VII+302 pages, Latin letters) in the category of canonistical writings too. It was devised dictated by practical needs, for the use of the Orthodox clerical schools and of the priests. There was a similar work of pastoral theology in Romanian, relatively recent, written by Archbishop Melchisedec Ştefănescu of Huşi (Melchisedec ŞTEFĂNESCU, Teologia Pastorală, Bucureşti 1863, 280 pages), but that was “not practical, being too general and theoretical”. Cf. A. CONSTANTINESCU, Andrei Şaguna, canonist, 441.

[19] See Andreiu Barone de ŞAGUNA, Cunoştinţe folositóre despre trebile căsătoriilor, spre folosul preoţimei şi al scaunelor protopopeşti, Sibiiu 1854, 43 pages (Cyrillic letter); Andreas Freiherr von SCHAGUNA, Nützliche Kenntnisse in Sachen der Ehe, zum Gebrauche der Seelsorger und der erzpriesterlichen Richterstuhle, Hermannstadt 1855, 32 pages.

    See also the Romanian version in Latin letters at I. MARGA, Mitropolitul Andrei Şaguna, autorul primei cărţi de drept al familiei la români, 283-293.

[20] A. CONSTANTINESCU, Dreptul canonic în opera lui Andrei Şaguna, 873.

[21] Of course, there was then, as there is today too, the difference concerning the celebrant of the sacrament, which in the Orthodox comprehension can be only the bishop or the priest (a deacon cannot celebrate a wedding in the Orthodox Church), whereas in the Roman Catholic widespread comprehension the celebrants of the sacrament are the wedded couple themselves, in the presence of a bishop, a priest, a deacon or even a layman.

    See cc. 1055-1165 Codex Iuris Canonici (CIC) and cc. 776-866 Codex Canonum Ecclesiarum Orientalium (CCEO).

[22] Nowadays, the Romanian Orthodox Church has a system of regulating marriages according to which the marriage contract is exclusively a state problem. What is the competence of the Church is the marriage as a sacrament. See I. FLOCA, Drept canonic ortodox, legislaţie şi administraţie bisericească, vol. II, 67-111.

[23] See A. Baronu de SIAGUN`A, Compendiu, 55-86.

[24] A chorepiskopos (Χωρεπίσκοπος,), or chorbishop – “country bishop” – is an extinct office of clergy in the Church. He was a type of assistant bishop who presided over a community in the rural countryside. The chorepiskopoi, who were probably originally endowed with full episcopal ministry, became gradually subject to their urban colleague, the city bishop. Although their number increased in the fourth century, their sacramental and administrative functions were gradually restricted. Thus, the local synod of Antioch (341) decreed that they could only ordain anagnostai, subdeacons and exorcists; deacons and priests could be ordained only with the city bishop’s permission (canons 8, 10). Although ultimately unsuccessful, canon 57 of the local synod of Laodikeia (343/364?) even attempted to replace them with itinerant priests (periodentai). Finally, the Seventh Ecumenical Council (Nicaea II – 787) restricted their episcopal prerogatives almost entirely by legislating that they could not ordain even anagnostai without episcopal consent (canon 14). Soon thereafter chorepiskopoi disappeared. Cf. Chorepiskopos, in: The Oxford Dictionary of Byzantium, vol. 1, 430.

[25] Cf. A. Barone de ŞAGUNA, Cunoştinţe folositóre despre trebile căsătoriilor, 32-37.

[26] The matrimonial competences of the judicial ecclesiastical forums have been abolished; the bishop does not delegate any of his powers anymore to any other church organ, as far as marriages are concerned, but he takes care personally of the problems of matrimonial church law (marriage licences are among the most frequent problems). Cf. I. FLOCA, Drept canonic ortodox, legislaţie şi administraţie bisericească, vol. II, 103-104.

[27] See Andreiu Baronu de ŞAGUNA, Elementele dreptului canonic al bisericii drept-credincioase răsăritene spre întrebuinţarea preoţimei, a clerului tânăr şi a creştinilor, ediţia II., Sibiiu 1855, XXI+183 pages (Cyrillic letter). About the two “canonical” reasons (the paragraphs 66 and 90 of the first edition, on the second marriage of the priests, respective the exclusion of the nuns as altar servers) which determined the (corrected) re-editing of this book after a year see N. BOCŞAN, I.-V. LEB, Coerespondenţa lui Andrei Şaguna cu arhiereii din Moldova şi Ţara Romanească, 79-80; M. STAN, Frauenrollen und Frauenrechte in der Rumänisch-Orthodoxen Kirche, 126-127.

[28] A. CONSTANTINESCU, Andrei Şaguna, canonist, 437.

[29] A. Baronu de ŞAGUNA, Elementele dreptului canonic, 21855, V.

[30] The Catholic canonist Friedrich Heinrich Vering (1833-1896) was, since 1875, the first professor of canon law at the newly-created Francesco-Josephina University of Czernowitz from where, in 1879 he was invited to the German University of Prague. His manual of Catholic, Eastern and Protestant Law was edited in three editions (F. H. Vering, Lehrbuch des katholischen, orientalischen und protestantischen Kirchenrechts, mit besonderer Rücksicht auf Deutschland, Oesterreich und die Schweiz, 1876, ²1881, 31893). On his person see Franz HEINER, Friedrich Vering †, in: AfkKR 76 (1896), I-VII; Nikolaus HILLING, Zur Biographie von Friedrich H. Vering, in: AfkKR 112 (1922), 48-55; IDEM, Vering, in: LThK, ¹1930-1938, Bd. 10, 561 et seq.; J. WEIER, Vering, in: LThK, ²1957-1968, Bd. 10, 707; Franz KALDE, Vering, in: LThK, ³1993-2001, Bd. 10, 673 et seq; IDEM, Vering, Friedrich Heinrich, in: BBKL, Bd. 12, 1258-1259.

[31] Jeftimije Jovanović (ca. 1776-1852) wrote the above-mentioned work in Slaveno-Serbian and then it was translated into Latin. Both texts – the original and the translation – were printed together, thus forming a bilingual edition (the left pages in Latin, the right pages in Slaveno-Serbian). Very interesting is the fact that Andrei Şaguna is mentioned among the subscribers of the first volume on page 303 (Andrei Šaguna A. E. Mitropolitskii Protosÿgkellǔ). Friedrich Heinrich Vering stated erroneously that the second volume was published in 1847 instead of 1844. Cf. Mihailo POPOVIĆ, The life and work of Jeftimije Jovanović: an overview, Paper presented at the study congress “Scienza canonistica orientale. Personaggi e dottrine”, Nyíregyháza – Yҗгoрoд/Hungary, 20-22 April 2007. See also F. H. VERING, Lehrbuch, 21881, 21-22.

[32] A detailed comparison of the two works that clearly refutes the accusation of plagiarism can be found at C. P[APUC]-SECELEA, Dreptul canonic în literatura românească, 11-15.

[33] I. MATEIU, Contribuţiuni la istoria dreptului bisericesc, 169-170.

[34] A. Baronu de ŞAGUNA, Elementele dreptului canonic, 21855, VI.

[35] “Pravilă” (“Law Code”) is a Romanian mediaeval collection of nomocanons.

[36] “Kormčaja Kniga” (“The Guiding Book”) is a Russian mediaeval collection of nomocanons, firstly printed in 1650-1653. Cf. I. ŽUŽEK, Kormčaja Kniga, 52 et seqq.

[37] On the person of Jovan Rajić (1726-1801) see Th. BREMMER, Ekklesiale Struktur, 20.

[38] “Pedalion”, “Rudder “(“Πηδάλιον”) edited by Agapios the Hieromonk and Nikodemos the Monk, was printed in 1800 in Leipzig and officially recognized by Constantinople as a sort of Code of Canon Law of the Orthodox Church. Cf. I. ŽUŽEK, Kormčaja Kniga, 8.

[39] A. Baronu de ŞAGUNA, Elementele dreptului canonic, 21855, VII-VIII.

[40] Andreiu Baronu de ŞAGUNA, Anthorismos sau desluşire comparativă asupra broşurei ,,Dorinţele dreptcredinciosului cleru din Bucovina în privinţa organisărei canonice a diecezei, şi a ierarhiei sale referinţe în organismulu bisericei ortodoxe din Austria”, Sibiiu 1861, 132 pages (Cyrillic letter).

[41] Andreas Baron de SCHAGUNA, Anthorismos oder berichtigende Erörterung über die Broschüre ,,Die Wünsche des rechtgläubigen Klerus aus der Bukovina in Betreff der kanonischen Organisirung der Diöcese und ihrer hierarchischen Stellung im Organismus der orthodox-orientalischen Kirche in Österreich.”, Hermannstadt 1863, 131 pages.

[42] The title of the brochure was: “The Wishes of the Orthodox Clergy of Bukovina concerning the Canonical Organization of the Eparchy and its Hierarchical Position within the Orthodox Church in Austria”. As it was not possible to have access to a copy of this brochure, we used only “Anthorismos” that quotes the content of it too. So in the following chapters we will quote both the arguments of the clergy of Bukovina and Andrei Şaguna’s counterarguments according to the same source, “Anthorismos” (in Geman).

[43] Caesaropapism is the state’s interference in the internal affairs of the Church under the pretext of defending the interests of the faithful. It is a conventional term for the allegedly unlimited power of the Byzantine emperor over the Church, including unilateral intervention in doctrinal questions ordinarily reserved to ecclesiastical authority. The term has been rejected by most scholars as a misleading and inaccurate interpretation of Byzantine political reality. It was introduced in the eighteenth century to indicate the political-ecclesiastical régime or the system of relationships characterized by the domination of the state (which openly confesses the Christian religion) over the Church, because the monarch, taking on a religious mission and supremacy over the ecclesiastical organization, puts under his control the Church’s spiritual functions of teaching, holifying and leading. Cf. Caesaropapism, in: The Oxford Dictionary of Byzantium, vol. I, 364-365.

[44] For details on each of these principles and their argumentation in “Anthorismos” see the chapter VI herein.

[45] Andreiu Baronu de SIAGUN’A, Enchiridionu, adeca Carte manuale de canóne ale unei, sântei, sobornicesci, si apostolesci Biserici cu Comentare, Sabiiu 1871, LII+548 pages (Latin letter).

[46] “Pravilă” (“Law Code”) is the Romanian term which was used to name the collections of nomocanons published in Romanian in the Middle Age. The nomocanons were official collections for the Church usage which contained, in a systematic order, firstly the Church laws called canons and, alongside with them the state laws, the laws issued by the Roman and Byzantine emperors in matters of the Church. Henceforth, the name of the nomocanon names: nomos=state law and canon=Church law, therefore a mixed collection of Church and state laws. The first nomocanons seem to have been written in the fifth century, when the nomocanonical principle was introduced in the Church life, according to which the Church guided itself after both its own laws and state ones.

    The most important nomocanon is “The Photius’ Nomocanon” or “The Nomocanon of Fourteen Titles”, published in 883 and accepted by the Constantinople synod of 920 as “the official Code of the whole Church”, still undivided at that time. The Western Church already in dispute with the Eastern one neither accepted nor rejected this Code. Soon the Great Schism occurred (1054) and since then it has been an official Code only for the Orthodoxy to this day. In the form it was devised by Photius and then perfected, this Code contains all the canons (given by the Apostles, the Ecumenical Councils, the local Synods or the Holy Fathers) and all the texts from the Byzantine emperors’ laws until 883 that refer to ecclesiastical affairs.

    On the Byzantine canonistic and nomocanons see, e.g., Péter ERDŐ, Geschichte der Wissenschaft vom kanonischen Recht. Eine Einführung, Münster 2006, 36-39.

    From Byzantium, the tradition of the nomocanons spread to the countries in Eastern Europe, in forms specific to every local Church. Thus, beginning with the twelfth century, in the Slavic Churches a great nomocanon appeared, under the name of “Kormčaja Kniga”, printed as late as 1650-1653 in Moscow. Cf. I. ŽUŽEK, Kormčaja Kniga, 14-51.

    Several nomocanons called “Pravile” (“Law Codes”) appeared in Romania too. Form the tens of law codes in Slavonic, Greek and Romanian, five were printed, which is more than in any other Orthodox Church, namely: “Pravila lui Coresi” (“Coresi’s Law Code”), Braşov 1561-1580; “Pravila mică” or “Pravila de la Govora” (“Small Law Code” or “Govora Law Code”), Govora 1640; “Pravila bisericească de la Iaşi” (“The Iaşi Church Law Code”), Iaşi 1644; “Pravila lui Vasile Lupu” or “Pravilele împărăteşti”, (“Vasile Lupu’s Law Code” or “Imperial Law Codes”), Iaşi 1646; “Pravila Mare sau Îndreptarea Legii” or “Pravila lui Matei Basarab” (“The Great Law Code or Law Amendment” or “Matei Basarab’s Law Code”), Târgovişte 1652. “The Great Law Code” was in force until the nineteenth century, during the reign of Alexandru Ioan Cuza (1859-1866), which shows the longevity of the nomocanonical tradition in the Romanian Principalities. Cf. L. STAN, Legislaţia Bisericii Ortodoxe Române în timpul arhipăstoririi Prea Fericitului Părinte Patriarh Justinian, 288-290.

[47] A. Baronu de SIAGUN’A, Enchiridionu, V-VI.

[48] “A.B.M. 2628”, an unfinished letter dated Sibiu, 1871, addressed to Teodor Mandici, in: T. BODOGAE, Un capitol din istoria relaţiilor culturale sîrbo-române, 556. Cf. also A. ŞAGUNA, Corespondenţa I/2, 242.

[49] A. Baronu de SIAGUN’A, Enchiridionu, VII- IX.

[50] Andreiu Baronu de SIAGUN`A, Compendiu de Dreptulu Canonicu alu unei sântei sobornicesci si apostolesci Biserici, Sabiiu 1868, XLVI+452 pages (Latin letter).

[51] Andreas Freiherr von SCHAGUNA, Compendium des kanonischen Rechtes der einen, heiligen, allgemeinen und apostolischen Kirche, aus dem Romanischen übersetzt von Dr. Alois Sentz, Hermannstadt 1868, XLIII+450 pages.

    We preferred to quote the original Romanian version, the German translation not being very precise. Besides, the numbering of the pages is almost identical in the two versions therefore the readers of German can easily use the German translation of book taking as reference the original Romanian quoted version.

[52] F. H. VERING, Lehrbuch, 21881, 22: “vielfach nach protestant.[ischen] Anschauungen umgestaltendes ‘Compendium…’.” Similar to the case of “The Elements of Canon Law”, Vering’s opinion, on which other further opinions were based, was rejected as being unfounded. Details on this at C. P[APUC]-SECELEA, Dreptul canonic în literatura românească, 15-35.

[53] See ZOTOS, Le droit canonique de l’Église Orthodoxe. Par Mgr André de Siaguna, archevêque de L’Église orthodoxe de Transylvanie et Hongrie, in: L’Union Chrétienne, IX (1868), No. 11, 527-528.  The article is reproduced entirely in both original and Romanian translation in RT XIII (1923), No. 6-7, 216-219.

    See also Evangelische Kirchenzeitung, Berlin 1869, No. 18.

[54] ZOTOS, Le droit canonique de l’Église Orthodoxe, 218.

[55] See “Kratkoe izloženie kanoničeskago prava edinoj, svjatoj sobornoj i apostol’skoj cerkvi sostavlyennoje Andrejem Sagunoj, archiepiskopom Sedmogradskim i Mitropolitom Rumyn greko-vostocmago veroispovedanja v Vengriji i Sedmigradiji”, 637 pages, in: “Christianskoe Čtenie”, years 1870-1872. Cf. I. LUPAŞ, Vieaţa, 189. Details on the reception of “Compendium” in Russia see at J. SCHNEIDER, Der Hermannstädter Metropolit, 162-165.

[56] See A. Baronu de SIAGUN`A, Compendiu, VIII-X.

[57] Ibid., X.

[58] John Zonaras (Ιωάννης Ζωναράς) (11th-12th centuries) is a Byzantine chronicler and canonist (commentator/scholiast). Under Emperor Alexius Comnenus (1081-1118) he was commander of the imperial body-guard and first secretary of the imperial chancellery. Later he became a monk at Hagia Glykeria (one of the Princes’ Islands now known as Niandro). Here he wrote his compendium of history: “Epitome ton istorion”, superior in form and contents to most other Byzantine chronicles, and extensively used during the Middle Age. Another important work of him is a commentary on the canons. One of the greatest peculiarities of his “Exposition of the Sacred and Divine Canons”, and one which distinguishes it very markedly from the later work of Balsamon upon the same subject, is that Zonaras confines himself strictly to the canon law and rarely makes any references to the civil law whatever; and in such canons as bear no relation to the civil law Balsamon often adopts Zonaras’ notes without change or addition. These commentaries were collected by Beveridge in his Oxford Edition for the first time into one work.

    A complete edition of Zonaras’ works is found in P.G., CXXXIV-CXXXV and CXXXVII-CXXXVIII.

Cf. Robert BROWNING, John Zonaras, in: The New Catholic Encyclopedia, vol. 14, 934; Klaus-Peter TODT, Zonaras, Johannes, in: BBKL, Bd. 14, 579-584;  Joannes Zonaras, in: The New Encyclopædia Britannica, vol. 12, Micropædia, 930; Johannes Zonaras, in: The Oxford Dictionary of the Christian Church, 1795; John Zonaras, in: The Oxford Dictionary of Byzantium, vol. 3, 2229.

[59] Theodore Balsamon (Θεόδωρος Βαλσαμών) (c. 1105/1130-40 – c.1195) also called Balsamo, patriarch of Antioch (c. 1185–95), is the principal Byzantine legal scholiast of the mediaeval period. He was a deacon nomophylax, or guardian of the Laws, and from 1178 to 1183, under the Patriarch Theodosius, he had charge of all ecclesiastical trials or cases. He was looked upon as the greatest jurist of his times both in ecclesiastical and civil matters.

    After a long tenure as law chancellor to the patriarch of Constantinople, Balsamon preserved the world’s knowledge of many source documents from early Byzantine political and theological history through his best work – “Scholia” (c. 1170), or commentary on the “Nomocanon” of Photius. “Scholia” was published first in Latin at Paris (1561), at Basle (1562); in Greek and Latin at Paris (1615), and again at Basle (1620). It is also found in Beveridge’s “Pandecta Canonum”, Oxford 1672 (P. G., CXXXVII-CXXXVIII).

    In his “Scholia” Balsamon insists on existing laws, and dwells on the relation between canons and laws – ecclesiastical and civil constitutions – giving precedence to the former.

    Cf. Friedrich Wilhelm BAUTZ, Balsamon, Theodorus, in: BBKL, Bd. 1, 358 et seq.; Francis X. MURPHY, Theodore Balsamon, in: The New Catholic Encyclopedia, vol. 2, 33; Theodore Balsamon, in: The New Encyclopædia Britannica, vol. 1, Micropædia, 846; Theodore Balsamon, in: The Oxford Dictionary of the Christian Church, 148; Theodore Balsamon, in: The Oxford Dictionary of Byzantium, vol. 1, 249.

[60] Matthew Blastares (14th century) is a priest-monk of the Esaias monastery at Thessalonica, Greece, who applied himself to the study of theology and canon law. In 1335 compiled the “Syntagma alphabeticum” (“Alphabetical Arrangement”), a handbook of Byzantine church and civil laws that synthesized material from previous collections. It is a real nomocanon, in which the texts of the canons and of the laws are arranged in alphabetical order by means of the initial letters of the words which indicate the subject-matter of each chapter; several chapters are thus found under one letter. Blastares’ “Syntagma alphabeticum” was almost immediately translated into Slavonic at the behest of King Stefan Dušan of Serbia and influenced the development of later Slavic legal codes. It is found in Beveridge’s “Pandecta Canonum”, II/2, Oxford 1672 (P.G., CXLIV, CXLV) and in “Sýntagma ton theíon kai hieron kanónon”, ed. by G. A. Rhalles and M. Potles, VI, Athens 1859.

    Cf. Friedrich Wilhelm BAUTZ, Blastares, Matthaios, in: BBKL, Bd. 1, 616 et seq.; Harold D. HUNTER, Matthew Blastares, in: The New Catholic Encyclopedia, vol. 2, 435; Matthew Blastares, in: The New Encyclopædia Britannica, vol. 2, Micropædia, 277; Matthew Blastares, in: The Oxford Dictionary of the Christian Church, 216; Matthew Blastares, in: The Oxford Dictionary of Byzantium, vol. 1, 295.

[61] Joseph Bingham (1668-1723) was an English clergyman and scholar who wrote the exhaustive “Origines ecclesiasticae” or “The Antiquities of the Christian Church” (10 vols., 1708-1722). Cf. Friedrich Wilhelm BAUTZ, Bingham, Joseph, in: BBKL, Bd. 1, 597; Joseph Bingham, in: The Oxford Dictionary of the Christian Church, 210.

    Johann Gottlieb Heineccius (1681-1741) was a German Lutheran theologian and lawyer. He studied theology at Leipzig, and law at Halle; and at the latter university he was appointed in 1713 professor of philosophy, and in 1718 professor of jurisprudence. Heineccius belonged to the school of philosophical jurists and developed his legal doctrines as a system of philosophy. His chief works were “Antiquitatum Romanarum jurisprudentiam illustrantium syntagma” (1718), “Historia juris civilis Romani ac Germanici” (1733), “Elementa juris Germanici” (1735), “Elementa juris naturae et gentium” (1737). Besides these works he wrote on purely philosophical subjects, and edited the works of several of the classical jurists. His Opera omnia (9 vols., Geneva, 1771) were edited by his son Johann Christian Gottlieb Heineccius (1718-1791). Cf. Hiram KÜMPER, Heineccius, Johann Gottlieb, in: BBKL, Bd. 25, 553-558; Heineccius, Johann Gottlieb, in: Deutsche Biographische Enzyklopädie, hrsg. von Walther Killy – Rudolf Vierhaus,  13 Bde.,  München u.a. 1995-2003, Bd. 4, 512.

[62] A. Baronu de SIAGUN`A, Compendiu, XVII.

[63] Ibid., XVII. Although a man of Ghost that gives life, not a man of the letter (form) which kills, Andrei Şaguna underlined here the compliance ad-litteram with the Bible and canons, giving another argument to maintain the canonicity within Orthodoxy, taking into consideration the numerous deviations from this principle, which he had to fight against.

[64] The Church power as plenary power of the entire Church, which means of Christ’s entire mystical body is held only by Him, as the head and supreme leader of the Church. From this plenary power of the Church the clergy (bishops, priests, deacons) are given by ordainment only that part which is necessary for the work they have a special calling, which is to serve the Word, to holify the life of the faithful and to guide them towards salvation.

    The Church power as special power of the clergy consists, in its essence, of a variety of means which those that are part of the priesthood receive through the grace that them is shared at each step of priesthood. Because of practical or methodical reasons, the Church divides these means into three categories: a) means that make them able to preach the Word of the Gospel; b) means that make them able to mediate the holification of the life of the faithful and c) means which make them able to lead the whole life of the faithful towards salvation. Moreover, using a borrowed judicial language rather than adequate expressions corresponding to reality, the three categories of means that the clergy use in their service are called powers. Cf. D. BELU, Autoritatea în Biserică, 555-556; L. STAN, Poziţia laicilor în Biserica Ortodoxă, 198-199.

For the Catholic comprehension of the Church power/Church authority and its exercising, before and after the Second Vatican Council, see E. CORECCO, Ordinatio Fidei, 223-248; L. GEROSA, Gesetzeauslegung im Kirchenrecht, 149 et seqq.; Peter KRÄMER, Dienst und Vollmacht in der Kirche. Eine rechtstheologische Untersuchung zur Sacra Potestas-Lehre des II. Vatikanischen Konzils, Trier 1973; IDEM, Sacra potestas im Zusammenspiel von sakramentaler Weihe und kanonischer Sendung, 23-33; K. MÖRSDORF, Schriften zum Kanonischen Recht, 171-240; A. M. ROUCO VARELA, Schriften zur Theologie des Kirchenrechts und zur Kirchenverfassung, 267-278.

[65] On the three branches of the Church power see, e.g., Felix BERNARD, Zur Genese der Drei-Gewalten-Lehre, in: ÖAKR 36 (1986), 232-236; Yves CONGAR, Sur la trilogie Prophete-Roi-Prêtre, in: RSPhTh 67 (1983), 97-116; Ludwig SCHICK, Das dreifache Amt Christi und die Kirche. Zur Entstehung und Entwicklung der Trilogien, Bern 1982; D. STĂNILOAE, Orthodoxe Dogmatik, Bd. 2, 89-122.

[66] The present Catholic canon law uses a different terminology to describe these three branches of the Church power: munus docendi, munus sanctificandi, munus regendi (cf. the systematics of the Codex Iuris Canonici of 1983: Liber III De Ecclesiae munere docendi; Liber IV De Ecclesiae munere sanctificandi; there is omitted, anyway, “De Ecclesiae munere regendi”). However, in the present work it was preserved the terminology used by the Romanian Orthodox canonists during the twentieth century (potestas magisterii, potestas ministerii, potestas jurisdictionis), considering that it is outside the sphere of this thesis to revise the terminology for to eliminate obscurity in the canonistical language nowadays. In order to eliminate confusions it was added, according to the terms used by the Orthodox canonistical language, the ones corresponding to the Catholic canonical language.

[67] Cf. I. IVAN, Câţiva termeni canonici, 97-98.

[68] On the issue ecclesiastical public law in the Western Church and the school of Ius Publicum Ecclesiasticum see Joseph LISTL, Kirche und Staat in der neueren katholischen Kirchenrechtswissenschaft, Berlin 1978; Ludger MÜLLER, Die Kirche – Institution oder vollkommene Gesselschaft?, in: Im Dienst von Kirche und Wissenschaft. Festschrift für Alfred E. Hierold zur Vollendung des 65. Lebensjahres, hrsg. von Wilhelm Rees – Sabine Demel – Ludger Müller, Berlin 2007, 293-317; L. GEROSA, Gesetzeauslegung im Kirchenrecht, 19-29.

[69] See A. Baronu de SIAGUN`A, Compendiu, 203-207. For the explanation what the stavropegic and dedicated monasteries are, see the chapter III.2.8 herein.

[70] Ibid., 219-221. See also the chapter III.2.8 herein.

[71] At length on these canonical principles see the chapter VI herein.

[72] Cf. A. Baronu de SIAGUN`A, Compendiu, 264-268.

[73] Ibid., 297-302.

[74] Lat. adminiculum=help, support

[75] Cf. A. Baronu de SIAGUN`A, Compendiu, 7.

[76] It is easy to notice and understand the importance given by Andrei Şaguna to the issue synod/synodality, if one take into consideration only a few elements related to the ecclesial context, Eastern but also Western, in which he lived and devised the “Compendium”: in the West, while between the 1054 Schism and the 1917 codification there was an inflation of canonical norms issued by popes, the Protestant Rudolph Sohm (1841-1917) came to contest and reject the canon law itself; in the East, the Russian and Greek Churches confronted themselves with massive interference of politics in the ecclesiastical affairs, the classical Orthodox institutions established by the Ecumenical Councils being neglected. Therefore, for a vigilant spirit like Andrei Şaguna it was necessary to clarify the sources of the Orthodox canon law and its foundation.

For Rudolph Sohm’s thesis on the contradiction between Church and law see Hans BARION, Rudolph Sohm und die Grundlegung des Kirchenrechtes, Tübingen 1931; Wolf-Dieter MARSCH, Ist das Recht eine notwendige Funktion der Kirche? Zur Auseinandersetzung mit Rudolph Sohm, in: ZevKR 5 (1956), 117-158; Wilhelm MAURER, Die Auseinandersetzung zwischen Harnack und Sohm und die Begründung eines evangelischen Kirchenrechtes, in: Kerygma und Dogma 6 (1960), 194-213; Klaus MÖRSDORF, Altkanonisches Sakramentsrecht? Eine Auseinandersetzung mit den Anschauungen Rudolph Sohms über die inneren Grundlagen des Decretum Gratiani, in: IDEM, Schriften zum Kanonischen Recht, 3-20; Antonio Maria ROUCO-VARELA, Die katholische Reaktion auf das „Kirchenrecht I“ Rudolph Sohms, in: IDEM, Schriften zur Theologie des Kirchenrechts und zur Kirchenverfassung, 59-94; Rudolph SOHM, Kirchenrecht I: Die geschichtlichen Grundlagen, Leipzig 1892; Dieter STOODT, Wort und Recht. Rudolph Sohm und das theologische Problem des Kirchenrechts, München 1962; IDEM, Rudolph Sohms Kirchenrecht I nach hundert Jahren, in: Theologia Practica 28 (1993), 238-245.

[77] See A. Baronu de SIAGUN`A, Compendiu, §323-§348.

[78] Ibid., 308.

[79] Ibid., 309.

[80] Ibid., 313-314.

[81] At length on the “Project of Regulation” see the chapters V.2 and V.3 herein.

[82] The discussion on the issue of the theological foundation of canon law was launched in the West, in the second half of the nineteenth century, by the Protestant jurist Rudolph Sohm. A century later, the theological foundation of canon law became an usual issue of the Catholic canonistic. See Yves CONGAR, Sohm nous interroge encore, in: RSPhTh 57 (1973), 283-294; Eugenio CORECCO, Theologie des Kirchenrechts, in: IDEM, Ordinatio Fidei, 3-16; Sabine DEMEL, Zwischen Rechtspositivismus und Kirchenspiritismus. Eine theologische Grundlegung und Theologie des Kirchenrechts, in: S. DEMEL, L. MÜLLER (Hrsg.), Krönung oder Entwertung des Konzils?, 17-38; Péter ERDÖ, Theologie des kanonischen Rechts. Ein systematisch-historischer Versuch, Münster 1999; L. GEROSA, Canon Law, 5-47; Markus GRAULICH, Unterwegs zu einer Theologie des Kirchenrechts. Die Grundlegung des Rechts bei Gottlieb Söhngen (1892-1971) und die Konzepte der neueren Kirchenrechtswissenschaft, Paderborn u.a. 2006; Peter KRÄMER, Theologische Grundlegung des kirchlichen Rechts. Die rechtstheologische Auseinandersetzung zwischen H. Barion und J. Klein im Licht des II. Vatikanischen Konzils, Trier 1977; Klaus MÖRSDORF, Kanonisches Recht als theologische Disziplin, in: IDEM, Schriften zum Kanonischen Recht, 54-67; A. M. ROUCO VARELA, Schriften zur Theologie des Kirchenrechts und zur Kirchenverfassung, 3-193; Gottlieb SÖHNGEN, Grundfragen einer Rechtstheologie, München 1962; Myriam WIJLENS, Theology and Canon Law. The Theories of Klaus Mörsdorf and Eugenio Corecco, Lanham et al. 1992.

For Orthodox viewpoints on the theological foundation of canon law see Liviu STAN, Ontologia juris, Sibiu 1943; IDEM, Probleme de ecclesiologie, 295-315; IDEM, Jus ecclesiasticum. Dreptul în viaţa Bisericii, 467-483.

[83] Just Nikolaj Afanas’ev (1893-1966), the most important representative of the Orthodox “eucharistic ecclesiology” received, in a personal way, the Protestant jurist Rudolf Sohm’s thesis. Afanas’ev doubted of the legitimacy of canon law in the Church. See Aidan NICHOLS, Nikolaj Afanas’ev and the Byzantine Canonical Tradition, in: The Heythrop Journal, Vol. 33 Issue 4 (October 1992), 415-425; Peter PLANK, Die Eucharistieversammlung als Kirche. Zur Entstehung und Entfaltung der eucharistischen Ekklesiologie Nikolaj Afanas’evs (1893-1966), Würzburg ²2000. For a critical perspective of Afanas’ev’s ecclesiology see John ZIZIOULAS, Being As Communion. Studies in Personhood and the Church, Crestwood, NY ³2000.

[84] On the issue of the Canon Law Code of the Orthodox Church see N. DURĂ, Le Régime de la Synodalité, 287-374.

[85] The reception of any local canonical norm, respectively the creation of new canonical norms by a Pan-Orthodox synod would transform them into canonical norms generally valid for Orthodoxy, but it is hard to believe that they will have the same value and authority as what is known in Orthodoxy as “The Holy and Divine Canons”. Probably the Latin Church’s sinuous experiences concerning the canon law in the second Christian millennium determine reserve on the part of many Orthodox people concerning possible alterations or additions to what the Ecumenical Councils of the first millennium decided. Last but not least the undivided Church’s councils are a fundament and a very important point of reference in the ecumenical dialogue nowadays. See J. RINNE, The Ecumenical Synods and the Present Reality, 561-562.

    On the local and general canonical norms within Catholic Church see Peter KRÄMER, Sabine DEMEL, Libero GEROSA, Ludger MÜLLER (Hrsg.), Universales und particulares Recht in der Kirche. Konkurrierende oder integrierende Faktoren?, Paderborn 1999; Michael WERNEKE, Ius universale – Ius particulare. Zum Verhältnis von Universal- und Particularrecht in der Rechtsordnung der lateinischen Kirche unter besonderer Berücksichtigung des Vermögensrechts, Paderborn 1998.

[86] Cf. A. Baronu de SIAGUN`A, Compendiu, 306.

[87] Ibid., 307-308. For details on the synodal principle in Andrei Şaguna’s works see the chapters VI.3 and VI.4 herein.

In the usual Orthodox comprehension through the synods decrees Christ Himself. Cf. J. RINNE, The Ecumenical Synods and the Present Reality, 562.

    Essentially, the difference between Orthodoxy and Roman Catholicism lies in synodality, in its understanding and application. While Orthodoxy preserved the synodality unaltered, as fundament of the entire life of the Church, facing any attempts to undermine this institution that may have occurred, the Church of Rome deviated flagrantly, especially after the Great Schism (1054), firstly from the ecumenical synodality of the first Christian millennium, replacing it, at the beginning with the theory and ecclesiology of the papal primacy, then with the dogmas of primacy and infallibility, proclaimed as such by the First Vatican Council (1869-1870). A return to the idea of synodality (communio) was achieved through the Second Vatican Council (1962-1965), but not a complete return, as long as the abovementioned dogmas of The First Vatican Council are unchanged. “Während die Römische Kirche die Unterwerfung unter den päpstlichen Primat fordert, tritt die orthodoxe Kirche für die Synodalstruktur ein.” F. R.GAHBAUER, Die Pentarchietheorie, 422.

See W. AYMANS, K. MÖRSDORF, Kanonisches Recht, Bd. 2, 9-17; K. MÖRSDORF, Schriften zum Kanonischen Recht, 241-284, 322-338; John R. QUINN, The reform of the papacy, New York 1999 (= Die Reform des Papstums, Freiburg im Breisgau u.a. 2001); Barbara RIES, Petrusdienst – Dienst an der Einheit, in: S. DEMEL, L. MÜLLER (Hrsg.), Krönung oder Entwertung des Konzils?, 104-126; D. STĂNILOAE, Orthodoxe Dogmatik, Bd. 2, 193-194, 218-223; Thomas STUBENRAUCH, Der Papst als Primus inter pares und höchste Autorität in der katholischen Kirche, in: S. DEMEL, L. MÜLLER (Hrsg.), Krönung oder Entwertung des Konzils?, 74-103.

[88] Andrei Şaguna declared: “in my ministry I keep tight the rudder of the Church [Pedalion] […] because it is the word of God”. Actele Soboarelor…1850 şi 1860, 71.

[89] See Hans LIERMANN, Der unjuristische Luther, in: Lutherjahrbuch 24 (1957), 69-85.

[90] See Hans BARION, Rudolph Sohm und die Grundlegung des Kirchenrechts, Tübingen 1931; Ludger MÜLLER, Fede e Diritto. Questioni Fondamentali del Diritto Canonico, Lugano 2006.

[91] Paradoxically, especially some of the Catholic canonists think that the canon law is not so important for the Orthodoxy as for the Catholic and Oriental Catholic Churches and that the Orthodoxy is less “disciplined” than these two Churches. Actually, the Orthodoxy is less institutionalized and more mystical and traditional, its organizational and disciplinary system being created following millenary canonical rules and principles. The fact that particularly after the fall of Constantinople (1454) the institutional system of the Orthodox Church lost its Byzantine complexity and magnificence could not be categorically understood – especially nowadays – as a disadvantage for Orthodoxy.

A usual Catholic opinion on the role and foundation of the canon law within Orthodox Church see at E. CORECCO, Ordinatio Fidei, 6-7.

[92] The topic “Oikonomia” was analysed through different perspectives, especially in the twentieth century, by Orthodox authors but not only. See Hamilkar ALIVIZATOS, Die Oikonomia, Frankfurt am Main 1998; Bartholomeos ARCHONDONIS, The Problem of Oikonomia Today, in: Kanon VI (1983), 39-50; IDEM, Kirchliche Ökonomie, in: EKL, Bd. 2 (1989), 1244-1245; Gheorghe CRONŢ, Iconomia în dreptul bisericesc ortodox, I Principii, II Dispensa şi graţierea, Bucureşti 1937; John H. ERICKSON, Oikonomia in the Byzantine Canon Law, in: Law, Church, and Society. Essays in Honor of Stephan Kuttner, ed. by Kenneth Pennington – Robert Somerville, Philadelphia 1977, 225-236; IDEM, The “Oikonomia” of Orders in Byzantine Canon Law, in: Proceedings of the Sixth International Congress of Medieval Canon Law, ed. by Stephan Kuttner – Kenneth Pennington, Città del Vaticano 1985, 259-270; IDEM, The Orthodox Canonical Tradition, in: IDEM, The Challenge of Our Past, 9-21; IDEM, The Problem of Sacramental “Economy”, in: Ibidem, 115-132; IDEM, The Value of the Church’s Disciplinary Rule with Respect to Salvation in the Oriental Tradition, in: Atti del congreso internazionale Incontro fra canoni d’Oriente e d’Occidente, a cura di Raffaele Coppola, Bari 1994, 245-274; Pierre L’HUILLIERE, L`economie dans la tradition de l`Eglise Orthodoxe, in: Kanon VI (1983), 19-38; Heribert MÜLLER, Oikonomia und Aequitas canonica, in: Atti del congreso internazionale Incontro fra canoni d’Oriente e d’Occidente, a cura di Raffaele Coppola, Bari 1994, 293-315; Radko POPTODOROV, Economy in the Orthodox Tradition and Practice of the Slavic Churches, in: Kanon VI (1983), 51-56; Heinrich J. F. REINHARDT, Das orthodoxe Prinzip der „Oikonomia” als Anfrage an das katholische Kirchenrecht, in: Iuri Canonico Promovendo. Festschrift für Heribert Schmitz zum 65. Geburtstag, hrsg. von Winfried Aymans – Karl-Theodor Geringer, Regensburg 1994, 585-602; Panteleimon RODOPOULOS, Oikonomia nach orthodoxem Kirchenrecht, in: ÖAKR, 36 (1986), 223-231; Thomas SCHÜLLER, Die Barmherzigkeit als Prinzip der Rechtsapplikation in der Kirche im Dienste der salus animarum. Ein kanonistischer Beitrag zu Methodenproblemen der Kirchenrechtstheorie, Würzburg 1992; Liviu STAN, Iconomie şi intercomuniune, in: Ortodoxia, XXII (1970), No. l, 5-19; Ivan ŽUŽEK, L`economie dans les travaux de la Commission Pontificale pour la revision du Code de droit canonique oriental, in: Kanon VI (1983), 66-86.

There are also recent approaches on Oikonomia. See Florian SCHUPPE, Die pastorale Herausforderung – Orthodoxes Leben zwischen Akribeia und Oikonomia, Würzburg 2006; Paul M. ZULEHNER, Gott ist größer als unser Herz – Eine Pastoral des Erbarmens, Ostfildern 2006, 172-180.

[93] It is not only the Latin language that the Catholic canon law has in common with the classic Roman Law, but it also is formal and textual embossed from the Roman Law. The influence of the Roman Law leaves itself still clearly read e.g. at the construction of the Codex Iuris Canonici of 1917 (CIC 1917). The classic threesome-scheme – persons law, matters law, procedural law – is supplemented through a preceding book about general norms and an attached fifth book with ecclesiastical criminal law. See Albert GAUTHIER, Roman Law and its Contribution to the Development of Canon Law, Ottawa 1996 (=Le droit romain et son apport à l`édification du droit canonique, Ottawa 1996).

On the other hand, one cannot ignore that the Catholic canon law carried forward in the history values of the Roman Law, contributing itself to the development of the modern legal thinking. Cf. Jürgen HABERMAS Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaates, Frankfurt am Main 1992.

[94] In this respect, Andrei Şaguna’s canonistical work is a good example of differentiating the Orthodox canon law from interferences from outside the Church. As we have shown when describing “Enchiridion”, he detached himself from the Romanian tradition of nomocanons or law codes (mixed collections of Church and state laws); when he took position in different ecclesiastical issues of his time, he did not hesitate to denounce the usage of certain state legal provisions or Byzantine customs as anti-canonical, in order to justify some deviations from the Orthodox canon law and Tradition. See A. Baronu de SIAGUN`A, Compendiu, 264-268; A. Baron de SCHAGUNA, Anthorismos oder berichtigende Erörterung, 70-71.

[95] The relationship body-soul is one used in “Compendium” to describe the relationship state-Church, too. See the chapter VI.2.3.3 herein.

[96] A. Baronu de SIAGUN`A, Compendiu, 309.

[97] See Rainer DECKER, Die Päpste und die Hexen. Aus den geheimen Akten der Inquisition, Darmstadt 2003; Peter GODMAN, Die geheime Inquisition. Aus den verbotenen Archiven des Vatikans, München 2001; Uwe NEUMAHR, Inquisition und Wahrheit. Der Kampf um den reinen Glauben. Von Peter Abaelard und Bernhard von Clairvaux bis Hans Küng und Joseph Ratzinger, Stuttgart 2005; Edward PETERS, Heresy and authority in medieval Europe: documents in translation, Philadelphia 1980; Gerd SCHWERHOFF, Die Inquisition. Ketzerverfolgung im Mittelalter und Neuzeit, München 2004; Peter SEGL (Hrsg.), Die Anfänge der Inquisition im Mittelalter. Mit einem Ausblick auf das 20. Jahrhundert und einem Beitrag über religiöse Intoleranz im nichtchristlichen Bereich, Köln 1993; Peter WATSON, Ideen. Eine Kulturgeschichte von der Entdeckung des Feuers bis zur Moderne, München 2006; Hubert WOLF, Index. Der Vatikan und die verbotenen Bücher, München 2006.


mihaela.stan January 10, 2017 Drept si Religie