At one of my tutorials this term, I turned up with a copy of Jean Gaudemet’s Les Sources du droit de l’Église en Occident du IIe au VII siècle. When my students were peering at it, I said that it would great to make canon law sexy again. Respone: Was it sexy in the first place?
No. Canon law has never really been sexy. The closest it came to sexy was in the Middle Ages when people needed to know it in order to run the church as well as be sure to avoid particular sins. But that’s not so much sexy as … useful?
Nonetheless, canon law should be sexier than it is. I’m not saying this just because I spent a portion of my day revising my translation of Leo the Great, Ep. 2, which is one of his so-called ‘Decretals’. I think that canon law and the sources of canon law provide an insight into the lives and history of the times whence they derive.
I’ll deal with the question of what is a ‘decretal’ and their significance another time. In short, they are papal letters that in post-mediaeval canon law are binding with a universal jurisdiction. There are historical issues with this definition, but let’s move along anyway and talk a bit about Leo, Ep. 167, one of my favourite Leonine epistles.
This letter is Leo’s response to a series of questions from Rusticus, Bishop of Narbonne in southern Gaul (France). The questions alone show us why canon law should be sexier (translation from NPNF2):
Concerning a presbyter or deacon who falsely claims to be a bishop, and those whom they have ordained.
Concerning a presbyter or deacon, who on his crime being known asks for public penance, whether it is to be granted him by laying on of hands?
Concerning those who minister at the altar and have wives, whether they may lawfully cohabit with them?
Concerning a presbyter or deacon who has given his unmarried daughter in marriage to a man who already had a woman joined to him, by whom he had also had children.
Concerning young women who have married men that have concubines.
Concerning those who leave the women by whom they have children and take wives.
Concerning those who in sickness accept terms of penitence, and when they have recovered, refuse to keep them.
Concerning those who on their deathbed promise repentance and die before receiving communion.
Concerning those who under pressure of great pain ask for penance to be granted them, and when the presbyter has come to give what they seek, if the pain has abated somewhat, make excuses and refuse to accept what is offered.
Concerning those who have professed repentance, if they begin to go to law in the forum.
Concerning those who during or after penance transact business.
Concerning those who return to military service after doing penance.
Concerning those who after penance take wives or join themselves to concubines.
Concerning monks who take to military service or to marriage.
Concerning young women who have worn the religious habit for some time but have not been dedicated, if they afterwards marry.
Concerning those who have been left as infants by christian parents, if no proof of their baptism can be found whether they ought to be baptized?
Concerning those who have been captured by the enemy and are not aware whether they have been baptized but know they were several times taken to church by their parents, whether they can or ought to be baptized when they come back to Roman territory?
Concerning those who have come from Africa or Mauretania and know not in what sect they were baptized, what ought to be done in their case?
Concerning those who after being baptized in infancy were captured by the Gentiles, and lived with them after the manner of the Gentiles, when they come back to Roman territory as still young men, if they seek Communion, what shall be done?
What we see in these nineteen questions are the pastoral concerns facing Rusticus in Gallia Narbonensis. We also, however, see some of the social fabric of the people of Gaul at this time — taking wives, taking concubines, joining the military, becoming monks, leaving the monastic life, and so forth.
Of interest to the historian of religion are the points about penitence. It is often stated (with no references!) that in the Early Church, penitence was a public act and had certain conditions. Here we see the concern about meeting those conditions — can a person who has undergone this form of penitence be a businessman or a soldier?
We also see the concern about people from Africa, home to the Donatist Schism that, I believe, probably lasted until the arrival of the Muslims in the late seventh and early eighth century. If a person turns up from Africa but isn’t sure if catholics — ie. those in communion with Rome and the imperial church from Spain and Britain to Mesopotamia and Egypt — or schismatics had baptised them, what to do? Leo’s line, which is the standard catholic line to this day, is to ask if the person was baptised in the Trinitarian formula. If so, it is the grace of God that matters, not the person doing the baptising.
An interesting question is the one about the return of a man who had been carried off by barbarians. If he comes home, and his wife has remarried under the belief that he is dead, what is to be done? Leo says that the first marriage still exists and the second is to be annulled as invalid. We are reminded by this question of the precarious state of the empire in the West, especially Gaul, during the fourth century. The Ballerini date this letter as late in Leo’s pontificate, in the 450s.
From 418 onwards, there was a permanent presence of Gothic ‘kings’ in Gaul, who, at various times, expanded or tried to expand their territory. In 436, this included an invasion of Narbonne. In the 450s, they strengthened their position in Spain and attempted to take over as much of Gaul as they could, although it was not until the 460s that things really got moving for them in Gaul.
And so we see the impact on human life of war and invasion in an ecclesiastical document, a piece of ‘canon law.’ It is visible alongside many other concerns, about marriages and baptisms and monks and penance and pseudobishops. We see in Ep. 167 how canon law reflects the concerns and fears and pastoral issues and dangers and realities facing communities that other documents often lack.
Let’s make canon law sexy.