Published in The Cambridge History of Christianity, 2: Constantine to c. 600, ed. Frederick Norris and Augustine Casiday (Cambridge: Cambridge University Press, 2007) 386-402

The Growth of Church Law

Kenneth Pennington

The Catholic University of America, Washington, D.C.

Canon law was born in communities that felt great ambivalence about the relationship of law and faith. Custom governed early Christian communities, not a body of written law. It was custom informed by oral traditions and sacred scripture. Christians did not arrange their lives according to a Christian law but according to the spiritual goals of the community and of individual Christians. St Paul wrote to Roman Christians who knew and lived under the law created by the Roman state and reminded them that faith in Christ replaces secular law with a quest for salvation (Romans 7:1-12 and 10:1-11). Law, he sharply reminded the Galatians, cannot make a man worthy to God; only faith can bring life to the just man. The inherent tension between the faith and conscience of the individual and the rigor of law has never been and never will be completely resolved in religious law.

            Christian communities lived without a comprehensive body of written law for more than five centuries. Consequently, in the early Church, “canon law” as a system of norms that governed the Church or even a large number of Christian communities did not exist. This is not surprising. The Roman state regulated religious practice and quite naturally legislated for the Church after the Empire became Christian at the beginning of the fourth century. Only gradually did the Church in the West begin to conceive of itself as a corporate body that had the authority to produce rules to govern itself and exercise a separate judicial role in society. In the East the Roman emperor who ruled over Greek Constantinople continued to legislate and regulate ecclesiastical institutions until its collapse in 1453 A.D. Byzantine canon law began to merge with civil law in the sixth century. The first legal collections contained only ecclesiastical norms ((κανόνες; “canons”) or secular norms (νόμοι; “laws”). In the late sixth and early seventh centuries Byzantine canonists combined these two sources: these collections were named “nomokanons” (νομοκάνονες), although the name did not become common until the eleventh century.

The Apostolic and Conciliar Age

            In the first three centuries Christians drew their rules and norms from the Gospels and sacred scripture. Some communities produced “handbooks” that provided guidance for various aspects of Christian life. Only a few of these have survived. One of the earliest was the Didaché that established rules governing the liturgy, the sacraments, and lay practices like fasting. The Didaché was probably written in Greek for a Syrian community. The book purported to contain the teachings of the Twelve Apostles and dealt with matters of liturgy and discipline. In the early third century (218 A.D.), Hippolytus, composed the Traditio apostolica, another treatise in Greek , that detailed the rites and practices of the Roman Christian community. It contains instructions for the consecration of bishops, priests, and deacons and for administering baptism. Slightly later (ca. 230) an unknown author wrote Didascalia apostolorum for Christian communities in Syria. It was written in Syriac and was incorporated into later compilations, especially a work of the late fourth century, the Apostolic Constitutions.

            These very early Christian texts share several characteristics. Their authority derived from their apostolic origins, not from ecclesiastical institutions. They drew upon scripture and practice for their norms. Their focus is Christian discipline, worship, and doctrine. They were intended to serve as a manual of guidance for the clergy and, to some extent, for the laity. These texts were not, however, a compilation of legal enactments. Although Christians had the model and example of Roman law, early Christian communities did not yet have institutional structures or a sense of corporate identity that would have encouraged them to produced legal norms governing themselves.

            The most important window into the structures and customs of Christian communities are the so-called Pastoral Epistles, 1 Timothy and Titus. It is most likely that the Apostle Paul did not write them. Their unknown author used these letters as a vehicles to establish rules for early Christian communities, and when he wrote he claimed Paul’s authority. At the beginning of Titus (1:5) the author reminded Titus that he had left him behind in Crete in order to correct those things that needed correcting. He was to appoint elders (presbyteri) and bishops (episcopi) in each city to govern the community. The elders should be married only once, their children should be Christians, and they should not live in luxury or moral turpitude. In Greek “episkopos” was an overseer or steward. Greek authors had used the word to describe males or females who functioned as guardians and supervisors. The English word “steward” would probably best express its meaning. The author of Titus listed the qualifications of an “episkopos” as being humble, kind, abstemious, peaceful, prudent, and hospitable (Titus 1:7-8). This list of virtues was for the stewardship of small Christian communities that met in households and that received missionaries from other communities from time to time. The steward should also embrace and preach sound doctrine (sana doctrina) (Titus 1:9).

            First Timothy gives more detail about the governance of early Christian communities. He calls the church, strikingly, the “house of God” (domus Dei) that is “the church of the living God” (ecclesia Dei vivi) (1 Tim 3:15). The implication of these metaphors is that the church is organized like a Greek or Roman household. The author of 1 Timothy states that he will instruct Christians how they should behave in the “ecclesia” (scias quomodo oporteat te in domo Dei conversari). As in Titus he rehearses the virtues that the steward. Anyone who would become steward (Si quis episcopatum desiderat . . . oportet ergo episcopum inreprehensibilem esse, 1 Tim 3:1-2) must have abilities to govern. “If a man has not learned to manage his own household how will be govern God’s church?” (1 Tim 3:5). The steward should not be a recent convert to Christianity, and he should have a good reputation. The author of 1 Timothy must have envisioned the governance of early Christian communities as being in the hands of a patriarchial male (Paterfamilias) whose obligations to his home must in some way be reflected in the early genesis of the pervasive Christian norm that clerics were married to their churches and should not move from place to place.

            The “ecclesia” as a “domus” is also probably reflected in the status of “diakonous” in Paul’s epistle to the Philippi (Phil 1:1) and in 1 Tim 3:1-13. At this early time the “diaconi” should be translated as “servers” and not “deacons.” These servers were both male and female. From the description of their duties in 1 Timothy they functioned in very much the same universe as servers in Hellenistic households. As Raymond Collins puts it:

Hellenistic moralists, from the time of Aristotle, taught that some virtues were appropriate for men, others for women. . . . In such a Hellenistic society, it was important that the Pastor <i.e. author of 1 Timothy> have something to say about the qualities of women who would serve in God’s household. So he stipulates that they should be serious, not slanderers, but temperate, and faithful in all things.

By the time, of course, that the Church emerges into the clear light of day in the fourth century, the role of women was confined to the home of the bishop or priest. The Councils of Ancyra (314) and Nicaea (325) (c. 19 and c.3) laid down rules governing women who lived in the homes of the clergy. These women were now defined by their relationship to the cleric. They were no longer privileged with titles that would have given them status in the church. 

            The author of 1 Timothy established norms for canonical procedure in cases when accusations were leveled against the clergy. These rules would remain a part of the canonical tradition for centuries. Christians could accuse elders (presbyteri) only when two or three witnesses could substantiate the charges (1 Tim 3:19). This passage is also an illustration of how Christians drew upon the Old Testament for procedural norms. Deut 19:15 had established that two or three witnesses were necessary for convicting a person of a crime. In addition 1 Tim 3:20 used public humiliation to chastise sinners: Wrong-doers should be publically rebuked. Their public humiliation would serve as a deterrence to others.

            The New Testament epistles were a primary source for the earliest norms of canon law, but they were thoroughly inadequate as guides for Christian communities as they began to evolve into more complicated and integrated organizational structures throughout the Mediterranean world. If the Greco-Roman “domus” was a model for the organization of early Christian churches, Greco-Roman public assemblies most likely provided procedural and institutional models for early Christian assemblies. These ecclesiastical assemblies provided a forum for making doctrinal and disciplinary decisions, for garnering consent of the community, and for establishing norms for local communities. These assemblies became a part of ecclesiastical governance very early. Although later church fathers, particularly John Chrysostom, did justify conciliar assemblies on the basis of Acts 15, modern scholars have concluded that the assembly described in Acts 15 at Jerusalem cannot be described as a “council” or “synod.” There is no evidence Christians of different communities gathered together to decide matters of discipline or doctrine until the late second century. Nonetheless they undoubtedly resolved questions inside their local communities with congregational assemblies regularly.

             The emergence of ecclesiastical assemblies that established canonical norms took place almost simultaneously in the East and West. In the early third century Tertullian reported that councils (concilia) were held to decide questions and to represent the “whole Christian name” (repraesentatio totius nominis Christiani). The exact nature of these assemblies has been debated, but there can be no doubt that they promulgated norms and made decisions for Christian communities. There are references to assemblies in Asia Minor at Iconium, Synnada, Bostra, and other localities in the early third century. In the second half of the century these assemblies became more common. The Council of Carthage that can be dated between 220 and 230 was the first Western assembly about which we are well informed. Cyprian provides information that the participants confronted the issues surrounding the legal rules of baptism. He also mentions another council that condemned Privatus, the bishop of Lambaesis, for his crimes. Cyprian presided over a number of councils while bishop of Carthage and used councils as a means to govern the churches of North Africa. In 251 he summoned a council to establish rules for reconciling those Christians who had abandoned their faith because of persecution. During the next year he gathered 67 bishops to treat questions of reconciliation again and infant bapstism. Cyprian wrote a letter to a certain Fidus in which he informed him of the actions that the council had taken. This is the oldest conciliar letter that has survived. Subsequently councils were held in Carthage almost every year during Cyprian’s reign as bishop (251-258).

            Councils created tensions between the emerging office of the monarchical bishop and his freedom to govern his church. There was an evolving conviction in Christian communities that there were norms and procedures that should be followed in all the local churches. Nevertheless Cyprian believed that a bishop should have great freedom of action and forcefully stated that he was answerable only to God. When he quarreled with Pope Stephen over the question of the validity of schismatic and heretical baptisms, the inherent conflict between local episcopal control and general norms, whether established by a centralized authority or councils, raised an issue of ecclesiology and obedience that would bedevil the Church for centuries. Cyprian’s response to Pope Stephen in 256 after his council had rejected the validity of heretical baptisms reveals his ambivalence towards any conception of canonical rules or norms that would govern the entire Church:

We are not forcing anyone in this mater; we are laying down no law (legem). For every appointed leader has in his government of the Church the freedom to exercise his own will and judgement, while having one day to render an account of his conduct to the Lord.

Cyprian recognized no system of canon law and, if he had been asked the question (anachronistically), he would have probably opposed the idea that the Church should have an uniform system of law to which the clergy and laity would be subject.

            By the fourth century bishops had established themselves as administrators of local churches. They also recognized their role in governing the affairs of nearby churches in councils as well as their responsibility to confront questions that touched upon the interests of the universal Church. In the East and the West councils became the main vehicles for promulgating norms that regulated the lives of clergy and the organization of the churches. It is during this period that the enactments that these assemblies produced became generally called “canons,” from the Greek word “κανών,” or “canon” in Latin. In Greek canon did not mean “law” but simply a “straight rod” or a “rule.” As we shall see, the primary focus of conciliar legislation in the fourth century was the structure of Church and clerical discipline. The earliest council for which we have a set of legislative decrees is one that was held ca. 306 in Elvira (Iliberri), a small town that once existed near Granada, Spain. This council produced canons that dealt with a wide range of matters, from clerical celibacy to apostasy. Although the 81 canons commonly attributed to the council may be the product of several Iberian councils from later in the century, it is clear that the focus of the canons was on the sexual mores of the clergy and laity. Elvira was the first Western council to dictate that priests should be celibate. Its canons, however, did not circulate widely.

            With the ascension of Constantine the Great to the imperial throne in the early fourth century the Christian churches began to produce canons that were publicly promulgated and that were recognized as authoritative by all the Christian communities. The first councils were held in the East. In 314 A.D. bishops from cities that were under the influence of the church in Antioch gathered in the Galatian city of Ancyra. The council issued 25 canons that dealt with a variety of recent problems in the church. They dealt with the discipline of the clergy, the alienation of ecclesiastical property, chastity, sex with animals, adultery, murder, and magic. As can be seen from this list the bishops tried to resolve disparate problems that must have been of immediate concern in Eastern churches. Later councils continued this practice. They never attempted to produce a comprehensive set of norms for Christian communities. Another council was held at Neocaesarea between 315 and 319 A.D, a Christian community to the East of Ancyra near the Black Sea. Like the canons of the Council of Ancyra they were not a systematic set of norms. The canons covered random subjects: priests cannot marry after ordination (c.1), penance for bigamy (c.3), pregnant women are not to be excluded from baptism (c.6), a minimum age for priests of 30 years (c.11), restricting the number of deacons in one community to seven (c.15). These two early Eastern councils were never considered ecumenical, but their canons were accepted as normative and were placed in many canonical collections of the East and West. Constantine also convened a council in the West at the city of Arles in 314. It was a large council with 33 bishops present, together with many lower clergy. Arles was the first Western council that did not report that laymen had participated in its proceedings (Elivira was the last to mention lay participants in its reports). These two councils can be seen as mile markers on the road that led to the councils’ becoming assemblies in which the will of clergy constituted the only legitimate source of canonical norms.

            In 325 Constantine decided to hold an imperial council in the East to settle the doctrinal controversies raised by the Arian heresy, particularly the issue of the relationship of the Father and Son in the Trinity. A number of local episcopal synods were held in the East in preparation for the council. The emperor originally planned to hold the council in Ancyra but moved it to Nicaea. He opened the council in June, 325. Around 300 bishops attended. Only a few Western clergy were present.

            The twenty canons of the council very quickly became universal norms in the Christian church. The council also drafted a definition of faith that became the fundamental statement of Christian belief, the Nicaean Creed. It is noteworthy that the canons do not regulate lay Christian life. The canons established a structure for the Church that paralleled the secular organization of the Roman Empire. Rules were established for the appointment of bishops. The primacy of the episcopal sees of Rome, Antioch, and Alexandria was established. The customary prerogatives of other episcopal sees were also maintained (c.6). The bishops and clergy were mandated to remain in the churches in which they were ordained (c.15 and 16). The prohibition against the translation of bishops enforced a norm that permeated the ancient church. Bishops were translated in the early church but rarely. Of all the norms established by the early Church this is one of the few that the later Church completely rejected.

            The hierarchical structure of the Church characterized by a “monarchical episcopate” clearly emerges in the canons of Nicaea. A metropolitan bishop was to head each province. He and the bishops of his province would hold synods twice a year to decide matters of ecclesiastical discipline (c.5). The synod would be the highest ecclesiastical court of the province. Canon 18 established the ranks within the clergy. Bishops and priests were ranked higher than deacons, and this order cannot be compromised, especially during liturgical ceremonies like the Eucharist.

            Other canons of Nicaea established norms for ecclesiastical discipline. Eunuchs who voluntary castrated themselves were excluded from the clergy (c.1). Rapid promotion of converts in the hierarchy was forbidden (c.2). Catechumens should have a time of testing before they were promoted to priests and bishops. This rule was later modified to permit newly baptized Christians to be elevated into the clergy if there were urgent necessity. Celibacy was endorsed. Bishops, priests, and deacons were not permitted to live with women unless they were relatives (c.3). Clergy could not practice usury (c.17).

            The early councils established a pattern of governance in the Church that lasted until the end of the ninth century. Local synods met regularly in the East and the West. They decided difficult and contentious problems in the church, and they promulgated canons that regulated the affairs of the provinces. Numerous local synods were supplemented by ecumenical councils that were held exclusively in the East until the Second Council of Nicaea in 787. Although rejected by the Greeks, the Latin Church has traditionally recognized the Fourth Council of Constantinople of 869-870 as ecumenical. It was convened by Pope Nicolas I in Constantinople, but its decrees were never included in any Eastern canonical collections (it was not recognized as an ecumenical council in the West until the eleventh century). In the eleventh century the papacy asserted its exclusive right to convene an ecumenical councils. The sites of all subsequent ecumenical councils were in the West. The age of councils whose canons united the Latin and Greek churches had past.

The First Collections of Canon Law within Christendom

            Until the fourth century the Old and New Testaments, Apostolic traditions, real and apocryphal, custom, and synodal canons constituted the four main sources of ecclesiastical norms. During the course of the fourth century two other sources of authoritative norms emerged in the Christian Church: the writings of the fathers of the church and the letters of the bishops of Rome. In the Eastern church the “Canons of the Fathers” were recognized as norms sometime between 381 and 451. They consisted of letters or other writings directed to specific persons by the Eastern Fathers. The most important were letters of Eastern bishops. Among the twelve bishops and patriarchs named in the canon as having authoritative force were Athanasius († 373) and Cyril († 444), archbishops of Alexandria; Basil the Great († 379), Archbishop of Caesarea in Cappadocia; Gregory († 394), Bishop of Nyssa. Within the Greek canonical tradition, the letters of these bishops remained of fundamental importance. Consequently the episcopal letters took their place among the synodal canons in Eastern canonical collections.

            In the Latin West a parallel development during the fourth and fifth centuries gave papal decretal letters (that were often rescripts, that is responses to questions) an equal place with conciliar canons. These decretal letters were responses to requests that asked for answers from the pope to problems of ecclesiastical doctrine, discipline, and governance. The form of the requests was based on similar letters sent to the Roman emperors on specific questions of law. In fourth century bishops in the Western church began to turn to Rome for answers to questions about discipline and doctrine. Pope Siricius’ (384-399) letter to Bishop Himerius of Tarragona is the earliest example we have of a letter of a pope responding to a series of questions. Himerius had sent a letter to Siricius’s predecessor, Pope Damasus (366-384). He had posed questions about the validity of baptisms performed by heretics, the rules for bestowing baptism, the treatment of Christians who lapse into paganism, and the punishment of monks and nuns who have fornicated. Damasus had not yet answered Himerius’ letter by the time of his death, but Siricius responded soon after he became pope. Clerical celibacy and continence were issues in the Iberian church, and Siricius devoted a long passage to the problem of married priests and deacons who had children with their wives after their ordination. The pope mandated that those priests who would live continently henceforward could keep their ecclesiastical offices but that those who did not were stripped of all their authority and offices.

            There are several elements of the letter that will remain characteristic of papal decretals for centuries. Siricius noted that the letter was read aloud before him and other clergy (in conventu fratrum sollicitius legeremus) and implied that he discussed the problems posed by Himerius openly with his clergy. Papal consultation with his curia would become a standard practice in the papal curia. By the twelfth century, popes began to render decisions regularly with the phrase, “with the advice of our brothers <the cardinals> we ought to ordain” (de consilio fratrum nostrorum debemus statuere — Pope Alexander III [1159-1181]) or, as Pope Innocent III (1198-1216) established the formula for future papal decretals, “with the advice of our brothers we are led to respond” (de consilio fratrum nostrorum taliter in hujusmodi duximus respondendum). The validity and authority of a papal decretal were based on the prestige and primacy of the bishop of Rome and the support of the Roman Christian community. In Siricius’ time the community was represented by the “conventus fratrum”; by the time of Innocent III the community was represented by the college of cardinals.

            At the end of the decretal Pope Siricius asked Himerius to forward the decretal letter to all his fellow bishops on the Iberian peninsula. Even at this early date, the pope conceived of his letter as establishing authoritative norms for regions far outside Rome. Almost immediately collections of papal letters began to circulate in the Western church, and papal decretal letters took their place among conciliar canons as sources of norms for the Christian Church.

            The fifth century was marked by the gradual acceptance of the Eastern conciliar canons in Rome. Latin translations were made of the canons of the Greek councils, and they began to circulate widely as authoritative texts. By the pontificate of Pope Gelasius I (492-496) the sources of canonical norms in the West were widely scattered in different languages and codices. For the first time, an attempt was made to compile a collection of canonical texts. A Greek, Dionysius Exiguus, arrived in Rome at the end of the century. He was fluent in Latin and Greek. His first task was to give the texts of the Greek councils fresh and accurate translations. He compiled three collections of conciliar canons that included 165 canons from councils dating from Nicaea and Constantinople I (381 A.D.) and arranged the text chronologically. In the last collection, commissioned by Pope Hormisdas (514-523), Dionysius placed Greek and Latin versions of the texts in the book so that readers could compare them. He also compiled a collection of papal decretals that began with the decretal letter of Pope Siricius and ended with Pope Anastasius II (496-498) in chronological order. Finally he combined these two works in a Corpus canonum that scholars have given the name Collectio Dionysiana. It was not an official collection of canonical norms — private collections would remain the only vehicles for preserving and disseminating canonical texts until the thirteenth century — but it circulated widely. A remarkable number of manuscripts (34) of the collection still exist in European libraries. Later canonists supplemented the Collectio Dionysiana. Even more importantly Pope Hadrian I (792-795) sent an augmented copy of the Collectio Dionysiana to Charles the Great that is known as the Collectio Dionysiana-Hadriana. Although other collections of canonical texts were also used in the Carolingian period, the Dionysiana-Hadriana enjoyed enormous popularity in Northern Europe from the ninth to the eleventh century. One hundred manuscripts of the work have been found to date. The work of Dionysius Exiguus established the canons of the fourth-century Eastern Greek councils and papal decretals as the foundation of Western Latin canon law.

            An Italian cleric named Cresconius composed a canonical collection in the sixth or seventh century — the date is not certain. In contrast to Dionysius’ chronological organization Cresconius produced one of the first collections arranged systematically, according to topics. He began and ended with the sacrament of ordination, but in between he covered marriage, clerical discipline, and other subjects. In order that his collection would be more easily used, he provided an index to the collection that listed the topics and the sources. The ecumenical councils and papal decretals were his primary sources. He also added a number of African councils to his collection. Cresconius called his collection a “Concord of Conciliar Canons” (Concordia canonum conciliorum). He brought concord to his collection by arranging and indexing them. Five centuries later another canonist, Gratian of Bologna, would attempt to bring concord to canon law systematically. In Cresconcius’ time the law was too young and the sources were too limited to require him to reconcile conflicting opinions and texts. There were not yet significant conflicts with which he must struggle.

            Canonical collections were made in various parts of Western Christendom. The Iberian peninsula and the Roman province of Gaul were especially important. During the sixth and seventh centuries Iberian bishops held numerous church councils. These canons were collected and added to the received texts of the Eastern councils. The most important collection of this extensive and frequent legislative activity was the Collectio Hispana. It was compiled by an anonymous canonist (although some attribute the work to St Isidore of Seville) in the first half of the seventh century. It circulated almost exclusively within the Iberian church and remained important until the twelfth century, surviving in many manuscript copies. The Collectio Hispana influenced canonical collections in the Carolingian realm.

            In Gaul the bishops of Arles and others in the Southern Gaul also held many church councils. The canons of these councils were collected and augmented by other councils and decretals. The most important of the Gallican collections was the Collectio Vetus Gallica. It was compiled in the early seventh century, probably in the vicinity of Lyon. A bishop of Lyon, Etherius of Lyon, might have been the author (his authorship is not certain). The collection was topically arranged and circulated far less widely than the Dionysiana or the Cresconius’ Concordia canonum conciliorum, but was copied and used in lands North of the Alps. Etherius’ chief concerns were the holding s synods, clerical discipline, the rights of metropolitan bishops, and the protection of ecclesiastical property. An Ilberian cleric, Archbishop Martin of Braga, compiled a collection of canons in the second half of the sixth century. He relied on the canons of Eastern councils and divided his collection into two subject areas: canons that dealt with the clergy and those that covered the laity.

            Perhaps the most unusual pre-Carolingian collection was compiled in Ireland ca. 700 A.D. Historians have named it the Collectio Hibernensis. Undoubtedly Irish missionaries carried it with them to the continent during the eighth and ninth centuries, and it was copied extensively. More than eighty complete or excerpts of the work are still extant. Many of these date to the eighth and ninth centuries, and many show clear signs of their insular origins in the handwriting of the text. The author strove for a comprehensive catalogue of canonical norms, arranged topically, but he sacrificed accuracy and exactness in the process. Very often his texts were severely abbreviated and altered versions of the original. False attributions of sources were common. The short version of the collection contained references to almost 1600 texts with almost 646 taken from the patristic fathers. Because Greek was a language that was cultivated in Ireland at this time, it is not surprising that the compiler included Eastern fathers as well as Western Fathers. This collection functioned as a collection of canonical norms and as a guide to priests. In an extensive section on theft, for example, not only did the compiler discuss the various types of theft but also the punishments that priests should inflict on penitents for different types of theft. These parts of the collection were later incorporated into penitential handbooks designed to give guidance to priests in the confessional. Another unusual characteristic of the collection was the inclusion of canons from very local Irish synods. Up to this time, collections commonly contained the great ecumenical councils, other early Eastern councils, the African councils, and other Iberian and Frankish councils. Obscure local councils were not included. But, from the ninth to the eleventh centuries, local synods were more and more frequently included in canonical collections. Canonical norms were taken from a wider and wider range of sources.

Greek Canonical Collections

            About fifty years after the Greek Dionysius worked in Rome, a priest from Antioch, John Scholastikos, gathered canonical texts into a new collection. John drew upon an earlier, now lost, collection, the Collectio LX titulorum. His principal sources were the established tradition of Greek conciliar canons from the early councils of Nicaea, Ancyra, Gangra to the later councils of Constantinople I and Chalcedon. This part of the collection was very similar to Dionysius’. John added texts, however, to his collection that were not yet accepted as canonical in the West, the writings of an Eastern Church Father, St. Basil the Great. John divided two letters of St Basil that were written in 374-375 into 68 chapters and arranged them systematically according to subject matter. He also included texts from secular law and continued to blur the distinction in Constantinople between the jurisdiction of secular and ecclesiastical rulers over the church. When Justinian had compiled his great codification (533-534) he had included legislation governing church government and clerical discipline at the beginning of his Codex. Further, after promulgating his Corpus iuris civilis he produced extensive legislation that dealt with ecclesiastical matters in his Novellae. John Scholastikos “canonized” this material by including 87 excerpts from Justinian’s Novellae in his collection. All of this material John placed under fifty titles that began with the honor due to the patriarch (title one) and ended with a title that dealt with the canon of prayers and the date of Easter (title fifty). John Scholastikos’ Synagoge of 50 Titles occupies a position in the Eastern church similar to that of Dionysius Exiguus’ collection in the West. It is the oldest and first important collection of canon law in the East. It was a private collection, but all later Greek canonical collections were based on it or used it as a source. Dionysius introduced papal letters as a source of canonical norms equal to conciliar canons; John established the writings of the church fathers (primarily the Eastern Church Fathers) as an authoritative sources in canonical collections. Later the Third Council of Constantinople (in Trullo) of 691 decreed that the writings of Eastern Church Fathers had juridical authority equal to conciliar canons. Since John Scholastikos was the patriarch of Constantinople his office gave his collection prestige and authority in the Greek church. Three hundred years later St. Methodios translated John’s Synagoge into Slavonic. It then became the text upon which the Slavonic and Russian churches based their legal systems.

            In the West compilers also began to include patristic writings into canonical collections during the sixth century. During the ninth century, Western collections began to include fragments of Roman law, but these texts mainly dealt with procedural law. Consequently by ca. 900 A.D. all the sources for Eastern and Western canon law were the same to a greater or lesser extent — with the significant exception that papal letters were not recognized as authoritative in the East. The contentious issue of papal primacy clearly can be detected in the canonists’ choices of sources in the Latin and Greek canonical collections of the early Middle Ages. This tension would be resolved only with the Schism of the Latin and Greek churches in 1054.

Bibliography

Older Histories of Canon Law and Reference Works

Dictionnaire de droit canonique (7 Vols. Paris: 1924-1965).

García y García, Antonio. Historia del derecho canonico, 1: El primer Milenio. Salamanca: 1967.

The multi-volume work of Gaudemet and Le Bras is dated but still useful:

Gaudemet, Jean and Le Bras, Gabriel, Histoire du droit et des institutions de l’Eglise en Occident:

Vol. 1: Gabriel Le Bras. .Prolégomènes. Paris: [1955].

Vol. 2: Jean Dauvillier, Les Temps apostoliques: 1er siècle. Paris:1970.

Vol. 3: Jean Gaudemet, L'Église dans l'Empire romain: IVe-Ve siècles. Paris: [1958].

Maassen, Frederick. Geschichte der Quellen und Literatur des canonischen Rechts im Abendland, 1; Die Rechtssammlungen bis zur Mitte des 9. Jahrhunderts. Graz 1870, reprinted Graz 1965.

Stickler, A.M. Historia iuris canonici latini, 1: Historia fontium. Torino: 1950.

Van Hove, A. Prolegomena. 2nd. Ed. Commentarium Lovaniense in Codicem iuris canonici. Malines-Roma: 1945.

Recent General Histories of Early Canon Law

Brundage, James A. Medieval Canon Law. The Medieval World. London-New York: Longman, 1995. The first chapter is a short introduction to early canon law.

Erdö, Péter. Storia della scienza del diritto canonico: Una introduzione. Roma: Editrice Pontificia Università Gregoriana, 2000. A broad and useful survey of canon law from the early church to the present.

Ferme, Brian Edwin. Introduzione alla storia del diritto canonico: 1: Il diritto antico fino al decretum di Graziano. Quaderni di Apollinaris1. Mursia: Pontificia Università Lateranense, 1998. An excellent, up-to-date history of canon law to Gratian. Very good bibliography.

Gallagher, Clarence. Church Law and Church Order in Rome and Byzantium: A Comparative Study. Birmingham Byzantine and Ottoman Monographs, 8. Aldershot: Ashgate, 2002. A very good analysis of Western and Eastern Canon law in the late antique and early Middle Ages.

Gaudemet, Jean. Sources du droit de l’église en occident du IIe au VIIe siècle. Paris: 1985.

Gaudemet, Jean. Sources du droit de l’église en occident du VIIIe au XXe siècle: Repères canoniques, sources occidentales Paris: 1993.

Kéry, Lotte. Canonical Collections of the Early Middle Ages (ca. 400-1140): A Bibliographical Guide to the Manuscripts and Literature. History of Medieval Canon Law. Washington, D.C.: 1999. A comprehensive survey of all the canonical collections to Gratian. Detailed bibliographies and complete listings of manuscripts for each collection.

Larrainzar, Carlos. Introduccion al derecho canonico. 2nd Edition. Instituto de Derecho Europeo Clasico, Serie B: Monografías. Santa Cruz de Tenerife: Idecsa, 1991.

Reynolds, Roger. “Law, Canon: To Gratian.” Dictionary of the Middle Ages (New York: 1986): 7. 395-413.

Van de Wiel, Constant. History of Canon Law. Louvain Theological and Pastoral Monographs 5. Louvain: Peeters Press, 1991.

 Selected Specialized Studies and Sources

Aimone, P.V. “Le falsificazioni simmachiane,” Apollinaris 68 (1995) 205-220.

Collins, Raymond F. “The Origins of Church Law,” The Jurist 61 (2001) 134-156.

Concilia Africae a. 345-525, ed. Charles Munier. Corpus Christianorum Series Latina 149. Turnhout: 1974.

Concilia Galliae a. 314-506, ed. Charles Munier. Corpus Christianorum Series Latina148. Tournhout 1963, reprint: Turnhout: 2001.

Concilia Galliae a. 511-695, ed. C. de Clercq. Corpus Christianorum Series Latina, 148A.

Gauthier, O.P. Albert. Roman Law and its Contribution to the Development of Canon Law, Ottawa: 1996. A synthesis of the penetration of Roman concepts and texts into canon law from the early medieval period to the present.

Jasper, Detlev and Fuhrmann, Horst. Papal Letters in the Early Middle Ages. History of Medieval Canon Law. Washington, D.C.: 2001.

Hess, Hamilton. The Early Development of Canon Law and the Council of Serdica. Oxford Early Christian Studies. Oxford: Oxford University Press, 2002.

Humfress, Caroline. "A New Legal Cosmos: Late Roman Lawyers and the Early Medieval Church." In P. Linehan, and J. Nelson (eds.), The Medieval World, London: Routledge, 2001: 557-573.

Humfress, Caroline. "Advocates," "Defensor Ecclesiae," "Heretics, Laws on," "Law Courts," and "Law Schools." In G.W. Bowersock, P. Brown, and O. Grabar (eds), Late Antiquity: A Guide to the Postclassical World, Cambridge, Massachusetts: Harvard University Press, 1999: 277-278; 405-406; 490-491; 540-541.

Mordek, Hubert. Kirchenrecht und Reform im Frankenreich: Die Collectio Vetus Vallica, die älteste systematische Kanonessammlung des fränkischen Gallien: Studien und Edition. Beiträge zur Geschichte und Quellen des Mittelalters 1. Berlin-New York: 1975. A very important study of the most important early Gallican canonical collection, whose introduction provides much information about early canon law.

Sieben, H.J. Die Konzilsidee in der Alten Kirche. Konziliengeschichte, Reihe B. Paderborn: 1979.

Somerville, Robert and Brasington, Bruce C. Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500-1245. New Haven-London: Yale University Press, 1998. Translates the decretal of Pope Siricius, the introductions to the collections of Dionysius Exiguus, Cresconius, and Martin of Braga.

Zechiel-Eckes, Klaus. Die Concordia canonum des Cresconius (Freiburger Beitäge zur mittelalterlichen Geschichte, 5; Frankfurt am Main: 1992). An introduction to and edition of a very important canonical collection