© Copyright by Wydawnictwo KUL CHURCH AND ROMAN LAW © Copyright by Wydawnictwo KUL Publications of the Faculty of Law, Canon Law and Administration of the John Paul II Catholic University of Lublin Volume 1 EDITORIAL BOARD Piotr Stanisz (Chair) Artur Kuś Paweł Smoleń Delaine Swenson Stanisław Tymosz Stanisław Wrzosek © Copyright by Wydawnictwo KUL Antoni Dębiński CHURCH AND ROMAN LAW Wydawnictwo KUL Lublin 2010 © Copyright by Wydawnictwo KUL English translation Konrad Szulga Revision and proofreading Jan Kobyłecki Cover design Agnieszka Gawryszuk All pictures by courtesy of the University Library of the John Paul II Catholic University of Lublin This book has been published with the financial assistance of: the Faculty of Law, Canon Law and Administration of the John Paul II Catholic University of Lublin and the Educational Foundation © Copyright by Wydawnictwo KUL, Lublin 2010 ISBN 978-83-7702-012-8 PUBLISHER Wydawnictwo KUL PRINTING AND BINDING ul. Zbożowa 61, 20-827 Lublin elpil tel. 81 740-93-40, fax 81 740-93-50 ul. Artyleryjska 11 e-mail: [email protected] 08-110 Siedlce http:// wydawnictwo.kul.lublin.pl e-mail: [email protected] © Copyright by Wydawnictwo KUL CONTENTS ________________________________________ List of Abbreviations ........................................... 7 Foreword .................................................... 9 CHAPTER ONE THE AREAS OF INTERPENETRATION 1. Legal Dualism............................................... 17 2. Imperial Legislation Serving the Church ........................... 28 3. Ecclesiastical Canons and Imperial leges ........................... 38 4. Ecclesia vivit lege Romana?..................................... 44 CHAPTER TWO THE ALLURE OF ROMAN LAW 5. The Development of Legal Science between the 11th and 13th Centuries . 65 6. Reception of Roman Law by the Church .......................... 82 7. Prohibition of Roman Law Studies from the 12th through the 13th Century 97 CHAPTER THREE A RESPECTFUL RESERVE 8. Law Codifications of the Latin Church ............................ 119 9. The Influence of Roman Law on Law Codifications of the Latin Church . 124 1. Systematics ............................................. 124 5 © Copyright by Wydawnictwo KUL Contents ±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±± 2. Legal Rules and Principles .................................. 129 3. Definitions and Terminology ................................ 137 4. Legal Procedure.......................................... 147 CONCLUSION .................................................. 159 Bibliography.................................................. 163 Index of Names ............................................... 187 Index of Terms ................................................ 195 © Copyright by Wydawnictwo KUL LIST OF ABBREVIATIONS ________________________________________ AD ± Anno Domini (after Christ) BC± before C hrist Can. ± canon CE±Catholic Encyclopedia, vol. I-[XI], Lublin 1973-[2006] CL±Canon Law, Warszawa 1958- DDC± Dictionnaire de droit canonique, vol. I-VII, Naz, R., ed., Paris 1935-65 f or ff ± following page(s) LHJ ± Legal and Historical Journal, Warszawa 1948-52, PoznanÂ1953- Lat. ± Latin MGH ± Monumenta Germaniae Historica, Berlin, Weimar 1826- Mansi ± Sacrorum Conciliorum nova et amplissima collectio, vol. I- XXXVIII, Mansi, J.D. [et al.], eds., Firenze 1759-98, Paris-Leip- zig 1901-05, Paris 1907-13, Leipzig 1923-27 PG ± Patrologiae cursus completus. Series graeca, ed. J.P. Migne, Paris 1857-66. PL ± Patrologiae cursus completus. Series latina, ed. J.P. Migne, Paris 1844-55, 1878-1890 praef. ± praefatio (introduction) pr. ± principium (beginning) RACh ± Reallexikon fuÈr Antike und Christentum, vol. I-XII, Clauser, T. [et al.], eds., Stuttgart 1950-90. RHD ± Revue Historique de Droit FrancËais et Etranger, Paris 1855- RNP KUL ± KUL Legal Science Annals, Lublin 1991/92- 7 © Copyright by Wydawnictwo KUL List of Abbreviations ±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±± SCh. ± Sources chreÂtiennes, de Lubac, H., DanieÂlou, J. [et al.], eds., Paris 1941- s.v. ± sub voce or sub verbo (under the term) ZSS Kan. Abt. ± Zeitschrift der Savigny-Stiftung fuÈr Rechtsgeschichte. Kanonisti- sche Abteilung, Berlin 1911-44, 1947- ZSS Rom Abt. ± Zeitschrift der Savigny-Stiftung fuÈr Rechtsgeschichte. Romanisti- sche Abteilung, Weimar 1880-1944, 1947- © Copyright by Wydawnictwo KUL FOREWORD ________________________________________ The world that the early Church was deemed to face ± initially as a small religious community ± was the reality markedly shaped by Roman civilisation manifested by a high level of political, social, economic and territorial organi- sation as well as a well-developed culture of thought. It also comprised the study and comprehension of law. The development of the early Church coin- cided with the time of the Roman jurisprudence at its height and benefiting from the heritage of former generations. No wonder this period is referred to in literature as the classical period. In his exhaustive, three-volume work on the Christian Roman law, Italian Romanist Biondo Biondi (1888-1966) wrote that ªthe Roman tradition and Christianity are two mighty spiritual powers that, although deriving from dis- similar concepts and having different aims, at some point in the history inter- twine to head for the same directionº.1 But that ªintertwinementº was pre- dated by an embittered encounter of the new monotheistic religion and Ro- manitas which concluded in rejection. Quid ergo Athenis et Hierosolimis? Quid Academiae et Ecclesiae? ± ªWhat has Athens to do with Jerusalem? What concord is there between the Academy and the Church?º ± asked Tertullian emphatically.2 The adherents of the new religion were either denying or ignor- 1 RomanitaÁ e cristianesimo sono due grandi forze spirituali, che, partendo da concezioni diverse ed avendo fini diversi, in un determinato momento storico si intrecciano nella medesima direzione; Biondi, B, Il diritto romano cristiano, vol. I, Milano 1952, p. 3. 2 Tert. De praesc. 7, 18. 9 © Copyright by Wydawnictwo KUL Foreword ±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±± ing the political, social and mental order of the time and correspondingly were rejecting its binding law. On the other hand, the Roman state, in principle tolerant of religious worship that remained in concordance with the public order and vital state interests, was reluctant or even hostile towards the new cult, partly because its followers refused to acquiesce to the imperial cult endorsed by Octavian Augustus and his successors. The year AD 313 saw the revolutionary proclamation by Constantine and Licinius of the Edict of Milan which ± according to the report of Eusebius of Caesarea ± read as follows: When I, Constantine Augustus, and I, Licinius Augustus, came under favorable aus- pices to Milan and took under consideration everything which pertained to the com- mon weal and prosperity, we resolved among other things, or rather first of all, to make such decrees as seemed in many respects for the benefit of every one; namely, such as should preserve reverence and piety toward the deity. We resolved, that is, to grant both to the Christians and to all men freedom to follow the religion which they choose, that whatever heavenly divinity exists may be propitious to us and to all that live under our government. We have, therefore, determined, with sound and upright purpose, that liberty is to be denied to no one, to choose and to follow the religious observances of the Christians, but that to each one freedom is to be given to devote his mind to that religion which he may think adapted to himself, in order that the Deity may exhibit to us in all things his accustomed care and favor.3 With the imperial decision taking effect, all the inhabitants of Imperium, including those of Christian persuasion, were granted the freedom of worship. Consequently, there was a shift in the relations between the state and the Church; what is more, there was an apparent transformation in the reference of Roman law to canon law, the latter dating back to and developing since the very origin of the Church. Emperor Constantine I spearheaded a process which made Christianity a prominent cultural component of the Late Empire. The pronouncement of the Edict of Milan provided an opportunity for the invigorating and inspiring interpenetration of ius canonicum and perfected ius Romanum. The processes of both Christianization of the empire and Romanization of canon law gained specific momentum. The social and cultural context of the rise of Christendom affected all the spheres of the Church, including the language. This impact must have been particularly tangible in the new juridical order of the Church as one 3 Schaff, P., ed. Church History, Life of Constantine, Oration in Praise of Constantine by Eusebius Pamphilius (A.C. McGiffert, Transl.), New York, 1890, p. 795. 10 © Copyright by Wydawnictwo KUL ±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±±± Foreword of the tools in the implementation of her fundamental objectives. The borrow- ing of Roman legal terminology, definitions and structures is unquestionable. Therefore, Roman law was frequently referred to as ªthe accoucheuse of canon law.º4 On the other hand, when pondering upon the problem of the influence of Roman law over ecclesiastical institutions and canon law, the assessment of its form and size leaves many questions unanswered. Nevertheless, in the areas where this influence is prominent, the question arises whether