Regarding the Necessity of a Synodal Judgment...

 Deacon Fr. Evghenie Morgun

Commentary Regarding the Necessity of a Synodal Judgment on the Issue of Condemning Heretics

I wanted to come here with a comment regarding the work you published – "A detailed study on the cessation of communion with heretics and the interpretation of Canon 15 (I-II Constantinople)" and especially regarding the question: who and when becomes a heretic. In this regard, there are some interesting materials in St. Nikodim (Milaș) [1], about the subtleties of church law in the interpretation of the First Canon of the Synod of Antioch.

In this Canon, we can observe a very interesting legal norm in the perspective of the issue of applying ecclesiastical punishments. The punishments corresponding to the committed violations are applied within Orthodox ecclesiastical law either through the sentence of actual condemnation in an accusatory form [по дамнаторному, обвинительному приговору], or through a sentence with a declarative-explanatory status [деклараторному, разъяснительному приговору]. In the case of actual condemnation, a mandatory requirement is that the ecclesiastical judgment examining the case fulfills all the norms concerning the judicial process, so that through this it may determine and discern the appropriate punishment in this particular case and, based on that, apply the deserved punishment to the judged party.

But there are cases in which the one guilty of a known violation is subjected to punishment even without such a sentence, and this happens when, at the very moment of committing the transgression, the wrongdoer subjects himself to the punishment prescribed by judgment. In this case, the judgment is superfluous because through the very act of committing the transgression, the wrongdoer has also carried out (applied to himself) the deserved punishment, and the judgment in this case has nothing left to do but to ascertain the unlawful act committed by the one subjected to punishment and the punishment itself, and thus the sentence of the judgment takes on a declarative-explanatory character.

Depending on this difference in sentences, the punishments applied in each case are called differently. In the case of an accusatory condemnation [дамнаторного характера], the punishment is called διχαστική ποινή, judicial punishment; and in the case where the sentence has a declarative-explanatory character [деклараторного характера], the punishment is called νομική ποινή, juridical or legal punishment. The latter case occurs when the transgression committed places the guilty party in a position where judgment is no longer necessary for depriving them of certain rights, because the very violation committed directly relates to the deprivation of these rights, and accordingly, at the moment the violation is committed, the deprivation of these rights happens automatically and by itself.

In the case of serious violations, especially those concerning the unity of the Church or the legal capacity [правоспособности] of a certain person fulfilling known obligations within the church structure, the punishment is applied automatically by ecclesiastical-canonical law. [Emphasis added.] Thus, for example, if a Christian openly renounces their faith and joins another religious community, by the very act of their renunciation, they lose all the rights they had as a Christian, and therefore, the sentence of an ecclesiastical court to announce their deprivation of these rights is unnecessary. Or, if a certain member of the church, due to some worldly guilt, has been condemned by a secular court to imprisonment or some other punishment, by this very fact, the mentioned person is subjected to canonical dishonor (Lat. infamia), and the pronouncement of an ecclesiastical judgment regarding this punishment is no longer necessary. In this case, as in others similar to it, the punishment comes automatically, as a direct consequence of an act known to be unlawful. Thus, in ecclesiastical canon law, the idea of juridical or canonical punishment has developed, as opposed to the punishment applied following a judicial process and pronounced by the body of ecclesiastical judgment.

The basis or argument for punishments of this kind can be found in Holy Scripture. The Apostle Paul, writing to Titus about the heretical man who does not wish to heed rebukes and return to the Orthodox faith, persisting in heresy, tells him that such a man has rebelled, being self-condemned — και άμαρτάνει, ων αυτοκατάκριτος (Titus 3:10-11).

The same meaning is found in the canons of the Synod of Gangra, which state that those who have committed the violations stipulated by the canons of this synod are to be considered separated from the Church (anathematized). In the canons of the Synod of Gangra, there is no indication of the necessity for an ecclesiastical judgment to pronounce the punishment, but concerning each wrongdoer who violates these canons, they affirm, like the Apostle Paul: ανάθεμα έστω, meaning that such a sinner who persists in their error is already judged.

Canon 1 of the Synod of Antioch most clearly explains punishments of this kind. Having established through the canon the time when the Orthodox should celebrate the Resurrection of Christ, the synod at the same time commands that bishops, priests, and deacons who decide to act contrary to what the synod has established are to be considered separated from the Church (τούτον ή άγια σύνοδος εντεύθεν ήδη άλλότριον έκρινε της εκκλησίας). Therefore, it is not necessary for the court to summon and condemn such persons, because they are already condemned by the canon of the synod, from the moment they violated its decisions. In this case, the ecclesiastical judgment, even if dealing with wrongdoers who, by their very actions, have fallen under the due punishment, can only ascertain this punishment, which the guilty party had received for the act committed, and such a sentence will have a declarative-explanatory character.

However, all that has been said above can only be applied in the case of certain violations for which such a categorical punishment has already been stated in the Canons. For other ecclesiastical violations, the sentence must be solely accusatory in nature, with the preservation of all the ecclesiastical legal provisions specific to an ecclesiastical judicial process.

[1] Nikodim (Milaș) of Dalmatia – was a Serbian Orthodox hierarch, bishop of Dalmatia between the years 1890-1912. Nikodim Milaș is also known as one of the greatest Orthodox canonists in the Slavic language, the author of many books on Canon Law, some of which have been translated into Romanian and are widely used by specialists. He was canonized in 2012 and is venerated locally by the Serbian Orthodox Church.

Romanian source:

 https://web.archive.org/web/20220808162102/https://lumea-ortodoxa.ro/index.html@p=2059.html