It is commonly said that Orthodox canon law is somewhere between non-existent and too complicated. Both, obviously, can not be true. What is true is that the current state of Orthodox canon law looks different today from western canon law. The idea of have “A Code” is an idea based on legal positivism, and the entrance of this idea into Roman Catholic canon law in the 20th century has been questioned.
The Orthodox church does not have “A Code.” Instead, there is (still) a dependence on all the legislation set down in councils, the decisions and teachings of various bishops and ascetics, and, to a lesser extent, the commentaries on these rules. The lack of one influential commentator, who pulled together various canons to try to find a harmony of discordant canons and distilling out basic principles of juridical interpretation, as Gratian did in the west, points to one of the main places where eastern and western canon law diverged.
So what do the Orthodox do with this unwieldy corpus which few people actually read? Cynically, one may say that it is a mess, different Orthodox jurisdictions can have rather different praxis, which a savvy Orthodox person can easily exploit to their own advantage. On the other hand, even with differences in praxis, the basic principles in the different jurisdictions remain remarkably constant for a lack of any easy rule book. This constancy, which is not just constant geographically but also temporally (consider the way the Orthodox still respect the rule from Nicaea which bans kneeling on Sundays), is based on something other than a text. It is, like many cultures before modern times, based on oral tradition, which is bigger than just verbal transmission, but is part of the life and actions and the traditional way of life. “We have always done things that way” or “this is the Orthodox way” are expressions of this lived tradition, where rules are a part of the way you live your life, not things applied to your life from a rule book.
With this in mind, it is easier to see what the Orthodox mean by economia, that nebulous thing Roman Catholics tend to view as allowing trigamy. Patsovos defines economy as the lifting of the consequences for violating the law (p. 13). So while economia seems to function like a dispensation, it is a bit different. A dispensation is an exception made to the law for you, economia (in this definition) is an exception made to the punishment for you. On the level of jurisprudence, economia is more strict than dispensation. However, in practice, economia allows more freedom, and allows the law to consider the present situation based on what has passed, instead of a dispensation which is intended to lift a rule in the future.
This temporal difference points to another basic philosophical difference between east and west. When it comes to marriage law, Patsavos mentions the principles of abduction or “sham” weddings invalidating a marriage. But the principle of consent it not developed further, certainly not to the extent consent has influenced Roman Catholic marriage law and the grounds for annulment. In an annulment, what is investigated (in most instances) is the mental beliefs about marriage and internal consent to the marriage, at the exact moment of the exchange of vows. So being a bit drunk, or thinking “maybe I should have married her sister instead,” at the altar is grounds to nullify the marriage – to say that it never actually happened. This is quite mystifying to the Orthodox, and not just because of the lack of development of consent. Patsavos posits many times that canon law is for spiritual perfection, and the Orthodox consider this spiritual perfection as growing and developing over time. To someone who had doubts about the chosen bride on the wedding day, and then 20 years later got divorced, the Orthodox would not attempt to adjudicate the past to determine a person’s state of mind on the wedding day, but instead ask “was there any point in the 20 years that you accepted the bride as your wife and tried to make it work?” Most would assume that after 20 years of marriage there was a point where the couple had consented to their union.
This idea that sacramental validity can develop and deepen over time points to another aspect of the dynamism of the eastern approach to ecclesiastical praxis. Whereas the Roman Catholic church today is trying to reign in the ballooning cases of marriage annulments with more and more pre-marital educational initiatives, the Orthodox are more willing to perform a wedding and allow the marriage to take root and flourish in its sacramental grace after. While this may seem shockingly irresponsible to a Roman Catholic, it is consistent with the approach to other sacraments of the church. Baptism being the main example of a sacrament usually received without understanding, to which the receiver is expected to align themselves in ever greater fashion over the course of one’s life.
There are a few specific areas where Patsavos’ language is strange when considered in terms of how those words are usually used in western canon law. The most egregious is on p. 35, where he says the difference between priests and laity is not ontological but liturgical. The ontological change of the priesthood is a fundamental principle in western canon law, and here Patsavos seems to be denying it. Yet, in the context he is talking about how clergy and laity play different roles in the liturgy, yet each is equally necessary. Yet it is clear that for Patsavos the priesthood is not simply functional, as on p. 43 he states that a priest who is under ecclesiastical censure may not function as a priest, but retains his priestly office. It would seem that Patsavos is considering the language of ontological change to be something more than a permanent mark on the soul, but something more akin to the place one has in the hierarchy of being. He is, simply, saying that priests are still human, human in the same way laity are humans. When western canon law speaks of ontological change of the priesthood, it is not speaking of the man being changed into a different class of being. Presently. There was, one must keep in mind, in the middle ages of high scholasticism the idea of the hierarchy of beings, with God on top, angels and other powers below, and a gradation down to the lesser and lower. In this system clerics were, in fact, put on a higher level in hierarchy of being than the laity, it was one of the arguments raised to defend clerical celibacy – since clerics were on a higher plane, being tied to the lower plane by wife or children was a confusion of the hierarchy (not unlike the sons of God having children with the daughters of men, as in Genesis). This idea has been quietly laid aside in Roman Catholic canon law in the past few centuries, though the argument seems to have made a historical impact on the Orthodox. The language of “indelible mark” is something I believe Patsavos would heartily agree with, and is thus perhaps a better way for east and west to discuss this topic.
Patsavos gives at the end of the book a topical list of canons. This is helpful to have references to canons which Orthodox would normally consider when deciding an issue. However, the western person should not consider this list to be exhaustive or authoritative. The rules of St John the Faster are a part of the Orthodox milieu, for sure, but for those in particular there could be (among some priests) a great deal of hesitation.
The real strength to this book is in its opening pages of introduction and principles. In it, Patsavos succinctly lays out how canon law as a dynamic corpus can be respected, obeyed, and also pastorally applied. He brings canon law out of the prism of rules to be followed, and into principles for life. He explains how canons can be authoritative, even if the plain meaning of the canon is no longer considered applicable. It is, in short, a masterful rebuttal to the Legal Positivism which is at work in the 1983 codex iuris canonici and the entire modern conception of what law is. I once heard an Orthodox canonist try to explain Orthodox canon law by comparing it to Common Law. The problem is that common law has itself moved in a legal positivist direction, and the idea of binding precedent is somewhat alien to canon law (except, perhaps, in the larger sense of adding to the traditional life of the church). Nonetheless, Patsavos here gives another perspective in how to have and follow a law, one which offers a good corrective to modern legal theories many of simply assume to be self-evident.