Law and the Christian Tradition in Modern Russia

Paul Valliere, Randall Poole, Paul Valliere, Randall A. Poole, Randall Poole, Paul Valliere, Randall A. Poole

• Publisher: Routledge
• Year: 2021
• Topic: History
• eBook ISBN:
  9781000427943
• Subtopic: Civil Rights in Law
• Index: History

This book, authored by an international group of scholars, focuses on a vibrant central current within the history of Russian legal thought: how Christianity, and theistic belief generally, has inspired the aspiration to the rule of law in Russia, informed Russian philosophies of law, and shaped legal practices.

Following a substantial introduction to the phenomenon of Russian legal consciousness, the volume presents twelve concise, non-technical portraits of modern Russian jurists and philosophers of law whose thought was shaped significantly by Orthodox Christian faith or theistic belief. Also included are chapters on the role the Orthodox Church has played in the legal culture of Russia and on the contribution of modern Russian scholars to the critical investigation of Orthodox canon law.

The collection embraces the most creative period of Russian legal thought—the century and a half from the later Enlightenment to the Russian emigration following the Bolshevik Revolution.

This book will merit the attention of anyone interested in the connections between law and religion in modern times.

1 Law and the Orthodox Church in the history of Russia

Paul Valliere

DOI: 10.4324/9781003017097-1

This chapter introduces the reader to the role the Orthodox Church has played as a source and subject of law in the history of Russia. The church was a source of law because it came to Russia with a law of its own: the classical Orthodox canon law, which was highly developed by the time the Russian lands were Christianized in the tenth and eleventh centuries. The church was a subject of law because no Russian state could afford to overlook it. For centuries, the Orthodox Church was the largest and best-organized institution in Russian society—far better organized, certainly, than the princely polities of medieval Russia. The Muscovite state of the fifteenth and sixteenth centuries was a more effective political structure than its antecedents, but it did not fundamentally alter the church’s juridical tradition. In the seventeenth century, however, the Russian Church endured two crises that eventually led to significant changes in its constitution: a schism within the church itself, and the arrival of Western-style political absolutism in Russia. The result of these crises was the subordination of church to state in the imperial system created by Peter the Great (r. 1682–1725). The Petrine system, which lasted until 1917, violated the church’s canonical order and liberty.

Tensions arising from the conflict between traditional canonical principles and the new imperial order, and from the pressures of existence in a society struggling to modernize itself, generated confusion but also creativity in the Russian Orthodox community. In the nineteenth century, successive generations of canonists, intellectuals, and church leaders sought to envision a new constitution for their venerable church. Their labors, frequently marked by discord, culminated in an event that could take place only because of a significant degree of concord: the All-Russian Council of Moscow of 1917–18. The All-Russian Council replaced the Petrine system with a new constitution based on an unprecedented synthesis of traditional and modern elements. This chapter ends with a word about the historical significance of the council’s achievement.

Law in the Orthodox Church

Clarity about the dynamics of law in Orthodox Christianity depends on a couple of distinctions. The first is the distinction between canon law and church law. The terms overlap and are often used interchangeably, but this fluidity can lead to misunderstanding. In the most restrictive sense of the term, canon law in the Orthodox Church refers to the body of positive laws of ecclesiastical provenance that attained its classical form in a Greek-language collection datable to the late ninth century (883)—the Nomocanon in Fourteen Titles, or Nomocanon of Photius, as it came to be known. Collections of canons (kanones, rules) appeared in the ancient Christian church as early as the fourth century and developed thereafter in both Eastern and Western venues of the still-undivided Christian community. Some of these compilations evolved into the ninth-century collection, which gained general acceptance in the Byzantine church during the ninth to twelfth centuries.¹ The ninth-century core—the “canon of canons,” as we might call it—consists of laws, rules, and advice about church organization and moral issues authored by church councils and ecclesiastical writers from the fourth through the ninth centuries. The ordering of the texts constitutes a fixed pattern in its own right. The Apostolic Canons come first. These are a set of eighty-five rules traditionally regarded as actual teachings of Jesus’s apostles, although they derive from a later time. Next come the canons framed by the seven ecumenical councils (325–787), followed by those of influential regional councils. A body of writings on moral and disciplinary topics by revered church fathers completes the collection. Apostles, councils, and fathers—namely, these apostles, councils, and fathers—constitute the classical canon law of Orthodoxy.²

1 For an introduction, see John A. McGuckin, The Ascent of Christian Law: Patristic and Byzantine Formulations of a New Civilization (Yonkers, NY: St. Vladimir’s Seminary Press, 2012). The best treatment of the conceptuality of the classical Orthodox canon law is David Wagschal, Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883 (Oxford: Oxford University Press, 2015). See also The History of Byzantine and Eastern Canon Law to 1500, ed. Wilfried Hartmann and Kenneth Pennington (Washington, DC: The Catholic University of America Press, 2012). Standard Russian surveys offer an excellent introduction to the subject: A. S. Pavlov, Kurs tserkovnogo prava (St. Petersburg: Izdatel’stvo “Lan’,” 2002), and Vladislav Tsypin, Kurs tserkovnogo prava: Uchebnoe posobie (Klin: Fond “Khristianskaia zhizn’,” 2002). 2 There is a broad consensus on this point. Citing leading Orthodox canonists and theologians (Paulos Menevisoglu, Peter L’Huillier, John Meyendorff, Nikodim Milaš, Vladislav Tsypin), Wagschal observes: “the 883 corpus will emerge in the manuscripts as the regular and sealed ‘core’ of the canonical tradition—a position it retains to this day in the modern Byzantine Orthodox churches” (Law and Legality in the Greek East, 48).

What, then, is church law? In the first instance, the term refers to civil laws pertaining to the church. The Orthodox Church achieved its definitive shape as the established church of the Christian Roman Empire. In that status, it enjoyed considerable freedom to manage its internal affairs, but state establishment subjected it to imperial legislation in the many areas of life where it impinged on civil and political matters. In Byzantine political theory, imperial law had divine authority in its own right. The emperor received his mandate directly from God without ecclesiastical mediation, just as the church received its divine mandate in spiritual affairs without the mediation of the state.³ Each with its own vocation, church and state were called to collaborate in “symphony” (symphonia, harmony) for the welfare and salvation of the human race. However, the Byzantines did not fuse church and state, nor did they elide canon law and imperial law. The distinction between the church’s rules (kanones) and the empire’s laws (nomoi), between the “divine” (theios) order and the “civil” (politikos) order, was carefully observed in theory, if not always with the same degree of consistency in practice. Imperial edicts dealing specifically with the church were still considered laws, not canons. Only the church could make canons.

3 The distinction is found in Justinian’s sixth Novella. See the discussion of the Byzantine understanding of “the church in the world” in John Meyendorff, Byzantine Theology: ­Historical Trends and Doctrinal Themes (New York: Fordham University Press, 1974), 212–23.

In the Byzantine system, bishops obviously needed to be expert (or to employ experts) not only in canon law but also in civil law pertaining to the church. Beginning in the late sixth century, to facilitate fluency in both laws, collections of imperial legislation concerning the church began to be made. These collections were transmitted in tandem with the church’s canons and were eventually combined with them to form composite collections—nomocanons, as these sourcebooks came to be called in later Byzantine usage.⁴ The popularity of nomocanons was based on convenience, not theory. The fact that canon law and imperial church law were transmitted together did not abolish the distinction between them. The two laws stood side by side in nomocanonical manuscripts but were still readily distinguishable. The idea of rationalizing the two sets of laws by subsuming them under an overarching scheme was completely foreign to Byzantine and Orthodox jurisprudence.

4 The term “nomocanon” has a history of its own; see Wagschal, Law and Legality in the Greek East, 41–44.

The term “church law” is ambiguous, however, because it refers to more than civil legislation alone. It also signifies the church’s own lawmaking subsequent to the formation of the classical canon law. Defining the core of the canon law did not obviate the need for new law in the church. Liturgical, clerical, penitential, moral, doctrinal, and other matters continued to demand attention as the church followed its historical path. These matters were adjudicated by bishops—diocesan, metropolitan, or patriarchal; more rarely, by councils of bishops. The rulings of these instances were church law. Speaking loosely, one can even call such judgments canon law, in that they were viewed as Spirit-guided continuations of the canonical tradition in a later context. It is important to note, however, that the ninth-century core was not pried open so that later rulings could be added to it, as if the canon law were a code, periodically updated. The classical canons became as sacrosanct as the classical dogmas. Both belonged to the holy tradition of the church: the one, the sacred deposit of faith; the other, the sacred deposit of practice.

The makers of postclassical church law labored under a basic limitation: they could not claim the universal authority that belonged to the classical canon law. Councils can claim universal authority if they are “ecumenical” (worldwide), but the Orthodox Church has not convened an ecumenical council since the Second Council of Nicaea (Seventh Ecumenical Council, 787). Councils that have taken place since that time are “local,” which in Orthodox usage means national or regional.⁵ As for hierarchical judgments, they apply to the diocese, metropolitanate, or patriarchate of the hierarch. Even the patriarch of Constantinople, called the ecumenical patriarch, is no exception to this rule, despite the fact that his title might be taken to imply universal jurisdiction. If the ecumenical patriarch exercised universal jurisdiction, Orthodoxy would have a papacy. But the Orthodox Church has consistently rejected the notion that it has a papal polity, even if individual patriarchs of Constantinople have occasionally acted as if it did.

5 Strictly speaking, an ecumenical council requires the participation of the Roman see; so until the healing of the East/West schism, an ecumenical council is impossible. However, a Pan-Orthodox council is possible, although such a meeting did not occur during the second millennium. The need for a Pan-Orthodox council was widely recognized following the collapse of the Russian and Ottoman empires, although efforts to convene such a council in the twentieth century came to naught. A Pan-Orthodox council assembled on Crete in 2016, but its status was compromised when the Russian Orthodox Church (the world’s largest Orthodox church) and three other local (national or regional) churches failed to attend.

One might wonder why limited jurisdiction should present a problem, since the scope of each judicial instance seems clear enough. A bishop governs a diocese; a metropolitan, a metropolitanate; a local council, a national or regional church. This apparent clarity masks two problems. First, what happens when one national or regional Orthodox church disagrees with another on a matter perceived by the parties to be important? Second, what happens when a conflict arises with respect to an office, practice, or institution which the classical canon law does not address, either because the disputandum did not exist until after the classical canon law was completed, or because it existed in such a different form that whatever the classical canons say about it does not clarify the later case?

The Russian church schism of the seventeenth century presents an example of the first problem. When it was discovered that the faithful people of the Russian Church performed their prayers differently than the faithful people of the Greek Church—not different prayers, but the same prayers performed differently—no one knew what to do.⁶ In the absence of a judge or council enjoying universal authority, who was to decide which church was praying aright? In a tolerant, live-and-let-live ethos, one would say, “Let the Russians pray in the Russian manner, the Greeks in the Greek manner, and there’s an end of it.” But this approach, too, represents a decision. Who is to make that decision? Who is to say, “This, and not some other way, is how we will proceed?” And not just say it, but win acceptance because the decision applies a universally recognized standard?

6 A good introduction by an author who focuses on the ecclesiological issues is Paul Meyendorff, Russia, Ritual, and Reform: The Liturgical Reforms of Nikon in the 17th Century (Crestwood, NY: St. Vladimir’s Seminary Press, 1991).

The office of patriarch presents an example of the second problem. Most national and regional c...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• Contributors
• Foreword
• Acknowledgments
• Introduction: A Russian conception of legal consciousness
• 1 Law and the Orthodox Church in the history of Russia
• 2 Vasilii Malinovskii: A Russian Christian on war and peace
• 3 Mikhail Speranskii: Statesman, jurist, and Christian thinker
• 4 Aleksandr Kunitsyn: Pioneer of natural law in Russia
• 5 Konstantin Pobedonostsev: Law, religion, and Russian conservatism
• 6 Boris Chicherin: Christian modernist
• 7 The civic religion of Anatolii Koni
• 8 Leonid Kamarovskii: Christian values and international law
• 9 Vladimir Soloviev: Faith, philosophy, and law
• 10 Between law and theology: Russia’s modern Orthodox canonists
• 11 Pavel Novgorodtsev: Natural law and its religious justification
• 12 Sergei Kotliarevskii: The rule of law in Russian liberal theory
• 13 Nikolai Alekseev: Advocate of social justice and global peace
• 14 Ivan Ilyin: Philosopher of law, force, and faith
• Afterword
• Index