ORLAPUBS P. R168: PRINCIPLES FOR APPLYING CANON LAW

This and other Orthodox sites need information about canon law--not the laws themselves (they can be looked up in the PEDALION "RUDDER")--but how they apply and can be dispensed from through economy, etc. The laity and evidently some clergy specifically need to know which violations of the Bible and canons are sinful and which are merely punishable, excusable under what circumstances, or whatever. One accepts that one can be guilty only of what one knows about and what one intends (i.e. what one wills with "informed consent")--unless one is culpable for not knowing because of not bothering to seek out such information as is available in a feasible way in a given time and place. Orthodoxy has no imputed sin (like the Reformers) or inherited sin (like the Latins); we accept Deut. 24:16 and Gal. 6:5. But legitimate doubts often arise, not least when obligations conflict. One may not be able to ask a priest, or he may be ill-trained to deal with certain subtleties we may inquire for information and advice on--though he should know where to ask, if there is time to do so.

Canon law can impose penalties (e.g. excommunication) for violating a canon--but when does breaking a canon become a sin? One can easily think of canons whose violation is worthy of every bad name but whose violation does not create sinfulness in any ordinary sense. Or is this wrong? One stands open to correction. When a patriarch advocates a war in at least a literal violation of commands and admonitions of Jesus (too well known to require citing here), what apoloyía or lógos can be offered in accord with St. Peter's statement:

Be "ever ready for a defence (apoloyía) to everyone asking you for a rationale (lógos) concerning the hope in you." [1 Pet. 3:15]

Or is one wrong in assuming that, since the Creator is the LOGOS ("Reason") and SOPHIA ("Wisdom") of God, one cannot afford to be less than eager to follow this advice. How can we tell whether it is advice rather than a command; where has the holy Church determined which it is, and where is the information to be found?

When a priest dispenses one from fasting because of the need for medications, what explicit principle is this based on? When a spiritual advisor allows one of the faithful to attend a parent's funeral and burial services--let's say, it's a heterodox service with non-Orthodox prayers--what is the explicit justification, assuming there is a justification for over-riding the canon forbidding praying with non-Orthodox in good standing? Are we forbidden to pray with repentant otherdox prisoners in a prison ministry? Is it forbidden to pray with the otherdox only in private or also at a public Orthodox offices (services)? There are Biblical admonitions as well as canonical ones (like the injunction never to cease praying), whose violation cannot necessarily be regarded as a sin. One would like to hear a rational account of this matter by someone trained in canonics--viz. an account based on principle rather than just a recitation of the relevant canon or something like: "What I do in such cases is . . . ." This last is of course allowed if one really is a holy elder (yeron, starets) serving as a rôle model for the listener.

What is being suggested is that it would be nice to avoid fast rules and perhaps praying with others and suchlike EXAMPLES unless they are being used as mines from which we can dig out general principles for applying the canons. In two millenniums, Orthodoxy is bound to have developed a corpus of such principles. Where do we go to read them? What is wanted is for everyone that can to rise above the list mentality to something that might be called the holistic or retiform or system mind. If we don't rise to the level of principles that decide matters of applying the canons, our views are simply naïve or amateurish--no matter how well intentioned. Not every possible new situation has been met with before and analysed. We need principles to apply to new contingencies.

What is wanted is are canonical PRINCIPLES for APPLYING Biblical commands and admonitions and ancient canons to new and unforeseen situations where the circumstances under which a canon has been authorized do not exist or exist in such a different way as to give rise to the thought that it is possible that the canon is moot there. This is not relativism, although it can be easily exploited to give rise to an insincere relativism, just as one type of legalistic rigidity can give rise to that Pharisaïsm that our Savior condemned. There needs to be a metaprinciple or epicanon that enables one to make an objective judgment or decision over how to deal with new situations, conflicts of canons and duties, and other contingencies discussed on the Internet. Justum quia jussum "right because commanded" won't do; if it did, Hitler's laws were just, and the petty dictators of Africa are right in contending that "might makes right." I doubt if telling Inuits or Micronesians to fast from olive oil will raise their spirituality. However that may be, they do it already. But then, I have never studied law.

     It seems pretty obvious that a law is meaningless without definitions and principles to make exact its applicability and to determine which laws rank above others and take precedence when they conflict. The Decalogue prohibition, "You are not to murder" needs a definition of what kinds of killing constitute murder and which do not--say, juridical execution, just war, or the like. Legal positivism (a law is a law is a law . . . ; justum quia jussum rather than jussum quia justum "ordered because right"; etc. ) seems to be the principle of not a few correspondents on Internet forums, aside from those who merely express private opinions on how to apply canons or to resolve conflicts of canons of different levels of importance in a given context. But will-first (theletist) positivism has been thought to be anathema to Orthodoxy and Classical learning as well.
     Principles are obviously deducible from, and must long since have been deduced from, the words of our all-holy Savior, S. Paul, S. James, and S. Peter. A principle is deducible from Jesus's statement to the effect that "the Sabbath was made for humans; humans were not made for the Sabbath"; from St. Paul's discussion of when it is (not) acceptable to eat food previously offered to pagan gods, as in most of the butcher shops of his day, etc., etc. These examples from Jesus and the Apostle Paul will cross the grain of various Internet corresponds no less than clarifying the difference between good and bad ecumenics does. But such principles as must have been worked out by canonists over the last two millenniums should be made available to ordinary laypeople who are looking for an answer--how to act, say, when laws or duties (obligations) conflict.
     Our Savior forbade divorce; in one passage, he forbade divorce other than by reason of adultery. So:

     In the view of this writer, not a canonist, the last point involves a general principle that guides us in the right direction. We know that the Orthodox allow divorce under restricted conditions.

     At all events, a failure to rise above positivism--let the reïteration be pardoned--leaves us with a system of conflicting rules where one person selects one to obey, another selects another, etc. . . . with subjective abandon. People torture themselves over conflicts and devise (I kid you not!) strategies like intending to "sin" but simultaneously intending to repent afterwards. What would Jesus have said? Surely, canonics has evolved in the last two millenniums to the point where it can offer reasonable ways of settling conflicts of canons, the applicability or non-applicability of canons in situations unforeseen and not provided for, and so on.   One is not advocating laxity of enforcing canons but rather a rationality that reflects the LOGOS-Creator--the Reason and Wisdom of God.
     While, as already stated, the writer has never studied civil or canon law, one has studied philosophy with well-known teachers at respectable universities--in particular "natural law"--something St. Vasil and others speak of. (Unfortunately, one has also read the view of one Orthodox writer that the Decalogue is "natural law," though any legislated law is, by definition, positive or imposed law. Other's mistakenly suppose that "nature" here is "anything that exists" and hence natural law is anything that goes.)   For what it's worth, philosophy says that a positive law is justifiable if it promotes natural law, which is in turn derived from what promotes the nature of a thing. If starving is harmful to a child's nature, a positive law that lessens the likelihood of children's starving is a natural and, in this view of things, good law.
     And now, back to divorce in Orthodoxy: If marriage is a natural and good thing for mutual comfort or to raise up posterity or just to preserve chastity--different groups pick any of these or any combination of them as prime reasons for the Mystery of matrimony--then a marriage that conflicts with whatever rationale is given can die; a marriage can die before either spouse dies. That's a way to look at it. A marriage accords with the natural law of the LOGOS's creation when it promotes the nature of the specific two people (more, in some religions) that are married. (Again, we have to stick with the specific definition of "nature, natural," not some other concept or, as the Latin scholastics put it, "intention.") But if marriage is natural, what about monasticism, which Jesus commended when he advised giving up even one's nearest of kin to follow Him? In what way is that natural? Or does canon law have to promote nature in the first place? Can Creator and creation be "naturally" or "lawfully" (not the same as "legally") in conflict? Can marriage canons promote spiritual nature, as understood in Orthodoxy, even when carnal nature is, in some sense, not fulfilled? One has read online that everyone is called in the monastic direction by the Orthodox religion--that holy Orthodoxy does not differentiate "vocations" (callings) in the Latin manner. What is the truth? What apology can be given to those asking for a reason or rationale for or against such an opinion?
      Suppose natural law requires preserving life or at least some kind of life. We (but not some religions of India) understand that we are allowed to kill a fish to nourish human life. But what happens when:

How do doctors and priests decide matters like the foregoing? If you are a priest, what training have you offered physicians in your vicinity? What instructions have you given your local hospitals and care homes for those dying who request Orthodox Baptism--or in the case of infants, those whose parents ask for Orthodox Baptism? (What of "Baptism by air?" Can it be justified in extremis, even by those that permit only trine immersion in ordinary Baptisms, when neither an Orthodox clergyman nor even an Orthodox nurse can be brought in in time? Can non-immersion be treated as allowed by an implicit economy for which no explicit dispensation is required in dire situations in which a priest is unavailable--say, an island lacking an Orthodox parish--when the best human knowledge available strongly indicates that the infant or adult is to die imminently? Are these questions that the laity have no interest in, no right--let alone duty--to ask themselves about? If otherwise, why are we not being informed? There's a lot of guesswork and individualist not very insightful casuistry taking place on the WWW.

What about economy in general? Which kind can be treated as implicit; which kind has got to be explicitly given? What can economy not dispense a person from? Certainly most sins in most situations! But where is the information to be found? When can a priest grant a dispensation for you to attend a parent's heterodox funeral? Is participating (merely by remaining present) at table Grace (thanksgiving) at the house of an otherdox host implicitly allowed, since it's not a public service? There certainly is a lot of confusion among some clergy and a lot of laity on Internet forums! We have been explicitly informed that the answer you get depends on the priest you ask! Where does 1 Pet. 3:15 come in to lift us above all of that random guessing to an objective view of what is allowed with regard to the canons dealing with praying with non-Orthodox Christians, with setting up a new Orthodox jurisdiction, with baptizing a dying convert in a hospital or a dying infant, with divorcing an abusive spouse, with failing to to educate oneself on how to spot and deal with one's children's emotional problems and choices in life? The old excuse that knowledgeable authorities were not native-speakers of English and that printing was too expensive no longer exist; the canons are online.
Why is information about canonical conflicts not made easy to come by in a suitably objective presentation? Why are we laity fed citations of ancient canons with no justification or allowance for circumstances, unforeseen situations? I hope there is some good in my giving up olive oil two days a week and during the fasts as an act of obedience, since there is no rationale in our society for doing it. I hope that all who substitute canola oil for olive oil, margarine for butter, pseudomeat made from soy beans for meat, and who also eat candies and other delights that are not forbidden as well as permitted crustaceans, frog legs, snails, snake meat, and honey are furthering their spiritual lives by sheer obedience; because without grounds that make sense in today's situation, there is little worth in addition to sheer obedience (aside from the value of not drinking too much wine or vodka). As of now, we have no other choice but to follow the rules if we want to be good Orthodox. But those who pretend that blind obedience is all that matters could be erring; it's a will-based (Protestant) notion, not a lógos-based notion. Even St. Seraphim of Sarov, who promoted obedience as the highest virtue in his earliest days, seldom condescended (if I remember) to take communion with the brothers of his monastery, though they and the abbot wanted him to. Those who say we become better Orthodox spiritually by not going to a parent's heterodox funeral or by only pretending to participate in saying Grace with otherdox hosts could be wrong. 'Tis not for me to say; nor would I advocate disobedience. What I would advocate is to prefer what agrees with the LOGOS-Creator, the Reason of God, and does not set up what seems, to the best of one's knowledge, a conflict between ecclesiastical rationales and the Reason of the Creator of the cosmos.