TEOLOGIA MŁODYCH 4, S. 10-18 CĂTĂLINA MITITELU Ovidius University of Constanta, Romania THE APPLICATION OF EPITIMIAS IN THE SEE OF CONFESSION ACCORDING TO THE „CANONICAL CUSTOM” AND THE „PENITENTIAL CANONS” I. THE CANONICAL CUSTOM, BASIS FOR THE APPLICATION OF THE OIKONOMIA In the sources of the orthodox canonical Law, we find out that the „συνήθεία” (canonical custom) was invoked as a source and basis even for the application of the Oikonomia. For example, Saint Basil the Great († 379) says that „(...) the true cure is to move away from sin; (...)” (Canon 3), and not the penance itself, be it even the defrocking1 of a cleric, but, in matters of criminal Canon Law, „we need to know both”, namely to apply both the „Acribia”, and the „canonical Custom”, which forsee the application of „Oikonomia”. Indeed, according to the apostolical and post-apostolical Tradition the Confessor has rather to apply the „Oikonomia” in order to obtain the healing of the sin committed by the penitent, and not „Acribia”. So, also in the case of the application of epitimias, the Confessor ought not only to be faithful to the observation and strict application of the canonical Legislation, namely of „τῆς ἀκριβείας” (the Acribia), but ought mainly to apply the principle of Oikonomia, which Saint Basil the Great identified with the principle affirmed by the custom (συνηθεία), namely by the old and continued practice in matters of penitential Discipline, a principle actually retained and affirmed also by the unwritten Law. But, exactly these „unwritten laws”, transmitted and preserved from generation to generation, had, both during the time of Saint Basil the Great and during that of the Fathers of the VIth Ecumenical (Trullan) Synod, „(...) the power of the written laws (...)”2. As a whole, these unwritten laws „have formed the juridical custom also called common law or customary law”3, which have also offered to the Oikonomia, and, ipso facto, to its modalities of application, their juridical-canonical basis. The canonical Tradition is also explicitly mentioned by Saint Isidore of Pelusium († 436) (Egyptian monk), who affirms, among other things, that Oikonomia is a „leniency” from what is foreseen „by the law”4, but which can be applied only in the domain of the custom, and, consequently, functions outside „the legislation” (νομοθεσίας)5. Cătălina Mititelu, Assoc. Prof., PhD - Ovidius University of Constanta, Romania. 1 About defrocking, see N. V. Durâ, Precizări privind unele noţiuni ale Dreptului canonic (depunere, caterisire, excomunicare, afurisire şi anatema) în lumina învăţăturii ortodoxe. Studiu canonic (Precisions regarding Some Notions of Canon Law (Deposition, Defrocking, Excommunication, Anathema) in the Light of the Orthodox Teaching. Canonical Study), part I, „Ortodoxia” (The Orthodoxy), XXXIX, 2 (1987), p. 84-135; part II, „Ortodoxia” (The Orthodoxy), XXXIX, 3 (1987), p. 105-143. 2 I. N. Floca, Drept canonic ortodox. Legislaţie şi administraţie bisericească (Orthodox Canonical Law. Church Legislation and Administration), vol. I, Bucharest 1990, p. 78. 3 Ibidem. 4 St. Isidore of Pelusium, Epistle 157, in: Migne, P.G., LXXVIII, p. 410. 5 St. Isidore of Pelusium, Epistle 73, in: Migne, P.G., LXXVIII, p. 1126. TEOLOGIA MŁODYCH 4 (2015) 10 THE APPLICATION OF EPITIMIAS... CĂTĂLINA MITITELU However, we also need to mention the fact that Oikonomia is not applied „outside the Law”, namely as an exception from the Law, but as an alleviation of its obligation, a practice actually legalized by the canonical traditional custom of the Church even since the pre-Nicene epoch. We have also to keep in mind the fact that even if we were to invoke the Roman juridical principle according to which „longa consuetudo usurpata contra legem”, yet, we could not justify or legalize practices that are contrary to canonical Legislation, and especially contrary to the canonical Doctrine of the Church, because „(...) canons are but determinations deduced from the fundamental principles of the Church doctrine”6. This is also the reason that we cannot adhere to the definition given by some Orthodox canonists to the term „οἰκονομία/ας”, which – in their opinion – would evoke only „an idea of condescension (συγκατάβασις) and of clemency (ἐπιείκεια), involving, in a precise case, the suspension, with the title of exception, of the application of the strict Law”7. Such a perception was certainly due to the fact that the respective canonists transferred realities from the domain of Roman law - and, in general, of the lay Law, - in the area of Canon Law, whose nature, aim and means are totally different. Actually, to reduce Oikonomia to a state of temporary „suspension” of a Canon Law, means that the respective authors had remained tributary to the terminology and doctrine of the Roman Law on „Dispensatio”, and not to that affirmed by the Christian jurist and apologist Tertullian († 240), for whom the Latin term, „dispensatio/onis”, was actually the semantic equivalent of the Greek word „οἰκονομία”, or, according to his own words, „(...) tamen dispensatione, quam οἰκονομίαν dicimus”8 (we call them either dispensation, or oikonomia). According to the orthodox canonical Doctrine, the application of the Oikonomia (οἰκονομίας) for different cases and situations, and for the pastoral-canonical needs of the Church – including, therefore, in the See of the Confession, – is not a reason or a precedent that we could act against canonical Legislation, but, on the contrary, we should continue to respect rigorously the Church Orders foreseen by the „canons (κανόνα)”9. Therefore, by applying the Oikonomia doesn’t mean that we renounce to the observance with „Acribia” (strictness) of the provisions of the canonical Legislation, and neither that we abrogate the canonical Orders and Norms10. According to the principle stated by the Jurisprudential Roman Law, a juridical custom (consuetudo) must „sit longaeva” (have ancientness); „sit tenaciter servata” (needs to be preserved tenaciously), namely be unanimously acknowledged; „sit opinione juris sive necessitatis”, namely be imposed by a jurisprudential doctrine or by an obvious need; „sit non contraria legis” (must not be contrary to the written law) and „sit nota legislatori atque non prohibita”11, namely needs to be known to the legislator and not be forbidden by the legislative or the executive power. 6 P. L’Hullier, L’Esprit du droit canonique. „Messager de l’Exarchat du Patriarcat Russe en Europe Occidentale”, Paris, 46-47 (1964), (apud Romanian translation in „Anuarul Facultăţii de Teologie din Sibiu” (The Yearbook of the Faculty of Theology of Sibiu), Publishing House of „Lucian Blaga” University (Sibiu), vol. VII (XXXII), (2006-2007), p. 12. 7 Ibidem, p. 14. 8 Tertulian, Adversus Praxean, cap. II, 1 [the translation is ours]. 9 Balsamon, Comentariu la Canonul 8 al Sinodului III ecumenic (Comment on Canon 8 of the Third Ecumenical Synod) (Ephesus, 431), in: The Athenian Syntagma, vol. II, p. 214. 10 Cf. I. Cotsonis, Προβλήματα της „εκκλησιαστικής οικονομίας”, Athens 1957, p. 30-31. 11 Ibidem. TEOLOGIA MŁODYCH 4 (2015) 11 THE APPLICATION OF EPITIMIAS... CĂTĂLINA MITITELU In the Church Law, custom is perceived in the same sense defined by the „old idea” (Jurisprudence) of the Roman Law, yet it has „three characteristic elements”, namely: It is in total harmony with „the teaching of faith and the religious-moral norms of the Church, (...)”; It is admitted by „consensus Ecclesiae”, namely by „the consent of the whole Church”; In the Church, „(...) the custom can also be in disagreement with the written law, including to the text of the Canons”12, but, if its use proved to be useful to the local or the universal Church, this custom has to be observed. Actually, this explains the fact that sometimes some Rules, established via the juridical custom, whose provisions were clearly at odds with certain Canons (cf. Canons 5, 51 Apostolical; 2 of the Synod of Constantinople of the years 879/880), were however confirmed not only by the canonical Tradition, but also by the canonical Legislation. Such Church Orders have been established via the juridical custom or customary Law even since the pre-Nicene epoch, as it is attested as well by the Christian jurist Tertullian, who mentions: „If something unwritten has been preserved everywhere, it means that the respective thing has been reinforced by custom, relying on Tradition. If anyone were to object that even for Tradition a written Tradition is needed, against this idea one can quote many decisions which, although not written, exist, however, by virtue of the Tradition and of the custom”. Finally, Tertullian concludes that „if we were to look for a written law concerning these decisions and many others, it could not be found; here we have the Tradition as a foundation, the custom as a reinforcement and the faith as a warden”13. We ought to mention as well that the Customary Law is not only „a fundamental material source of the Church Law”14, but also the best interpreter of the written Law, namely of the canonical Legislation, applying thus in this concern the well-known interpretation rule of the Law set by the Roman Jurisprudence, namely: „Consuetudo, optima legum interpres”. The Fathers of the VIth Ecumenical (Trullan) Synod – who in Canon 102 reproduced ad litteram the words of Saint Basil the Great both regarding the application of the Acribia, and regarding the application of the canonical custom, namely of the Oikonomia, – allowed the Confessors, in the See of the Confession, to also use the traditional practice of the canonical customs in matters of Epitimias. “(...) For we ought to have in mind two things, the things which belong to strictness (τῆς ἀκριβείας) and those which belong to custom, and to follow – the Fathers of the Trullan Synod (691/692) conclude – the traditional form in the case of those who are not fitted for the highest things, as holy Basil teaches us” (Canon 102, Trullan Synod).