Canon

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CANON LAW

Canon law, jus canonicum, is the totality of the established rules of the Roman Catholic Church: canons (the decisions of councilsj, disciplinary regulations, decretals, and other texts collected from local bishops and councils as well as from the New Testament. Like Roman civil law, canon law is divided into public—the constitution of the church and its relation to other bodies—and private—the internal discipline of members.

History. Canon law falls into three periods: (1) from the beginning to the decretum of Gratian, Concordia discordantium canonum, completed shortly before 1150; (2) from then to the Council of Trent (1545-63); and (3) from the Tridentine Council to the present. Gratian's collection completely superseded all earlier compilations and remained the text of the scholastics at medieval universities. In order to build a coherent system out of various precedents and writings of theChurch Fathers, Gratian organized his five books on Roman law principles, thus introducing natural law, which became important in antisodomy provisions. In 1234 Gregory IX expanded the collection and createdwhat in time came to be known as the Corpus ju~is canonici, theFiveBooks of Canon Law, as opposed to the Corpus juris civilis, the codification of Roman secular law by Justinian, to which were added the later Sextus in 1298 and the Clementines in 1317 to form seven books (to which two extravagantes were later added), ail of which were overtimeglossed. Increasingly homophobic theologians, often fanatic friars from Thomas Aquinas to Luca da Penne, continued to influence the glossators. With the aid of philosophy the Inquisition inspired feudal, royal, and municipal laws to order the fining, castration, and even burning of sodomites—all penalties that remained foreign to Canon law proper. The Council of Trent reformed doctrine and discipline, elevating Thomas Aquinas to the rank of the most important doctor of the church. In the twentieth century the canon law was twice recodified.

Early Antisodomy Provisions. As early as 177, Athenagoras had characterized adulterers and pederasts as foes of Christianity and and subjected them to the harshest penalty the Church, itself still persecuted by the Roman state, could inflict: excommunication. Even before Constantine had ended the Roman state's persecution, the council of Elvira (305) had severely condemned pederasts. Canons 16 and 17 of the Council of Ancyra (3141, mainly concerned with defining penance for those guilty of sin rather than with prescribing legal penalties, were interpreted as inflicting lengthy penances upon those guilty of sexual intercourse with males and excommunicating them from the church. Christian Emperors when they became heads of the church meted out savage penalties for unrepentant sodomites: the sons of Constantine the sword, and Theodosius and Justinian the avenging flames.

Of the Germanic kingdoms that succeeded the Western Empire in the West, only the Visigothic in Spain (ca. 650) enacted any penalty at all, namely castration, in spite of Tacitus' famous remark long interpreted to mean that primitive Germans threw homosexuals into bogs. Irish and other penitentials treated homosexual offenses more severely than heterosexual ones, most often condemning anal intercourse, but prescribing greater severity for anal than for oral sex, whetherwith , a partner of the opposite or of the same gender. The early canons followed them in prescribing penance despite the death penalty in Leviticus and the fulminations of the Apostle Paul, Clement of Alexandria, St. John Chrysostom, St. Augustine, and other Patristic authors. In fact, some penitentials were soon invested with canonical authority. Writers of rules for monasticism tried to prevent homosexual acts by keeping candles lit in the dormitories all night and having an elderly monk sleep between two young ones, each in single beds. Heightened Repression. Repression reappeared in the eleventh century with an obsessive diatribe against all forms of "unnaturalvice," the Liber Gomorrhianus of Peter Damian. Asserting that whoever practiced sodomy was "tearing down the ramparts of the heavenly Jerusalem and rebuilding the walls of ruined Sodom," his harsh denunciations presaged the attitude of the later councils and canonists. Burchard of Worms and Ivo of Chartres published collections containing canons that condemned fellation, bestiality, pederasty, and sodomy, and prescribed severe penalties. In the Latin Kingdom of Jerusalem, which created a short-lived interface between Christianity and a more tolerant Islam, the council of Nablus, preoccupied with sodomy, decreed in 1120 that guilty men should be burnt at the stake. Although Gratian's Decretum devoted little space to "unnatural" sexuality, at the end of the twelfth century Peter the Chanter devoted a long chapter of his Verbum abbreviatum to sodomy, and his circle seems to have originated a fantastic addition to the legend of the ~ a t i v i t ~ according to which, at the moment when the Virgin Mary was giving birth to Jesus, all sodomites died a sudden death. From then on, canonists regularly cite Justinian's Novella 77 that disasters such as famine, pestilence, and earthquake, to which many added floods and other natural catastrophes, are divine retribution for ',crimes against nature."TheThird Lateran Coupcil (1 179) adopted a canon specifically prohibitingl'that incontinencewhich is against nature" and decreed that clerics guilty of unnatural vice must either forfeit clerical status or be confined perpetually in a monastery. Somewhat paradoxically, Bernard of Pavia held that since sodomy did not create affinity, it constituted no impediment to marriage. The High and Late Middle Ages. From the second half of the thirteenth century, savage penalties for homosexual offenses become part of Western European legislation. Not merely a cause of misfortune for the whole community, sodomy is also repeatedly linked with heresy, and accusations of it become a convenient ingredient of political invective as popes hurled it against Frederick 11, and aweapon in power struggles within the feudalruling class. Popular belief inclined to ascribe thisvice to the clergy-probably with much justification. Like the Scholastics, canon law treated homosexuality, bestiality, and masturbation as contra naturam, "contrary to nature," because they excluded the possibility of procreation, which thus became the touchstone of sexualmorality. Such crimes on the part of a religious constituted sacrilege, because his or her body was a vessel consecrated to the service of God. If publicly practiced or widely known, these offenses carried with them the sanction of infamy (infarnia), a deprivationof status that involved unfitness for holding most kinds of public office or positions of trust and deprivation of the right to appear in court as a plaintiff or witness. Ironically enough, the canonist Pierre de La Palud (ca. 1280-1342) had to explain at length why the church did not allow two males to marry each other and so legitimize their relationship. Formally beginning at least as far back as Gregory IX's commission to the Dominicans in 1232 to hunt down heretics in southern France and elsewhere, the papal Inquisition in due course in certain regions extended its jurisdiction to sodomites as well, now viewed as allied with supernatural powers, demons, devils, and witches. The convicted were handed over to the secular authorities for punishment; in time the secular governments were to act independently of the Church in prescribing and enforcing the death penalty. Before execution, confessions were wrung from victims by torture, and often the trial records were burnt togetherwith them. St. Bernardino of Siena (1380-1444) denounced homosexual desire as a form of madness.

Modern Times. Given that secular laws already prescribed the extreme penalty, canon law provisions against sodomy, renewed in the sixteenth century as part of the Counter-Reformation, had few novelties. Considerable attention was given, however, to masturbation aswell as to lesbianism and transvestism.

James A. Brundage poses the question: Why have medieval Christian beliefs and practices concerning sex endured so persistently? He offers three reasons: the continuity of the socioeconomic environment, the persistent identification of the erotic with the sacred, and the inertia of the law and its institutions. None of these factors fully explains why medieval beliefs survived even the cataclysm that altered the political and legal face of Europe at the end of the eighteenth century, when under the influence of deistic and freemasonic ideas the law codes were rewritten and a new, liberal ethos began to inspire ever larger strata of society. In no small measure the continuity is rather to be explained by the intolerance that forbade any criticism of Christian sexual morality and branded opponents of its norms as a "justifying their own filthy vicesn-an argument reiterated as late as 1957 in a decision of the West German Constitutional Court upholding Paragraph&Nbsp;175 with specific reference to the doctrines of the Church. In such a climate of opinion the sexual reform trend faced an uphill battle; and without an effective movement to change public opinion and bring prcssure upon legislators, liberals were loath to expose themselves to obloquy and ridicule. In the United States it was only toward the end of the 1960s that afew Congressmenwith "safe" seats began to speakin defense of gay rights. As aresult of these changes the official position of the Roman curia came to be increasingly isolated, though its champions remained obdurate.

In 1904 the reactionary Pius X appointed a commission to prepare a new codification of the canon law. Because he condemned religious modernism, it is not surprising that the results of this labor, published in 1917 as Codex luris Canonici, offered no innovations in sexual morality.

The hope that the liberal measures adopted in the aggiornamento or "renewal" initiated by the Second Vatican Council under John XXIII (pope, 1958-63), when conditions seemed more propitious, would lead to changes in Roman Catholic policy regarding homosexualconduct, was not fulfilled. A pontifical commission charged with the revision of canon law in 1962, when it was finally promulgated in 1983, explicitly reaffirmed traditional doctrines. The "Declaration on Certain Questions Concerning Sexual Ethics," issued by thevatican Congregation for the Doctrine of the Faith on December 29, 1975, described homosexual acts as deprived of their "essential and indispensable finality" [that is to say, having no procreative function); and being "intrinsically disordered," in no case could they be approved. Reinforcing this statement was another issued by the same body, the "Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons" of October 30, 1986, which led to the gradual expulsion from church premises in the United States of Dignity, the Catholic homosexual organization.
See also Law, Germanic; Law, Feudal and Royal; Law, Municipal.

BIBLIOGRAPHY.
James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, Chicago: University of Chicago Press, 1987; Michael Goodich, The Unmentionable Vice: Homosexuality in the later Medieval Period, Santa Barbara: ABC-Clio, 1979; Jeannine Grammick and Pat Furey, eds., The Vatican and Homosexuality, New York: Crossroad, 1988.

William A. Percy

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