Adolf Harnack · 4 of 17

2. The Development of Ecclesiastical Law.

2. The Development of Ecclesiastical Law.

Let us notice at least in a few words the increased activity in ecclesiastical law in the period under review, which was not without its influence on the mode of conceiving of dogma, and on the history of dogma.

First, it is a fact of importance that from the middle of the second half of the ninth century, Church law was framed more and more on a Pseudoisidorian basis. Second, the preponderating attention given to law in general, and the growing subjection of all ecclesiastical questions to legal conceptions are characteristics of the period. As to the first point, it is well known that the Popes always continued to take more to do with the administration of the dioceses, that the old metropolitan constitution lost its importance, and that the old constitutional state of things in general — during the first half of our period — fell into decay and ceased to exist. The Episcopal power, it is true, strengthened itself in many places by assuming a civil character, and on the other hand, the Emperors, from Otto I. to Henry III. after having reformed the enfeebled papacy, brought it for a time into dependence on the imperial crown. But as they also deprived all laymen, who were not princes, of all share in the direction of ecclesiastical affairs, and as they suppressed the independence of the local ecclesiastical bodies (the congregations), in the interests of imperialism and of “piety,” only the Emperor (who called himself rector ecclesiæ and vicarius Christi), the Pope, and the bishops remained as independent powers. It was about the property of the bishops, and on the question as to who was the true ruler of the divine state and the vicar of Christ, that the great battle was really waged between the empire and the reformed papacy. In this struggle the latter, acting on the impulse given by Gregory VII., developed itself into the autocratic power in the Church, and accordingly after having freed itself in Rome from the last remnants of older constitutional conditions, framed its legislation by means of numerous decretals. At the “œcumenical” Lateran Synods of 1123 and 1139, the papacy left no doubt as to this new position which it meant to assert. The Popes afterwards, till the time of Innocent III., defended and strengthened their autocratic position in the Church amid severe but victorious struggles. No doubt, they had to hear many an anxious word from their most faithful sons; but the rise of the papacy to despotic power in the Church, and thereby to dominion over the world, was promoted by the piety and by all the ideal forces of the period. Not in opposition to the spirit of the times — how would that have been possible? — but in union with it, the papacy ascended the throne of the world’s history in the eleventh and twelfth centuries. Its opponents, so far as they possessed religion, were its secret allies, or contended with doubtful consciences, or, at least, were unable to show that the benefits for which they fought (national churchism, etc.) were the highest and the holiest. Under such circumstances the papal decretals obtained an ever-increasing authority. They took their place beside the old canons, nay even beside the decrees of the œcumenical Councils. Yet, strictly speaking, the measure of their authority remained still quite uncertain, and prior to Innocent III. dogmatic questions were not treated in them, or treated only very seldom, while the Popes in general, in the period of 150 years from the Synod of Sutri till 1198, had their hands fully occupied with establishing the Roman autocratic and monastic Church order.

In developing itself as the supreme court of jurisdiction, the papacy could never have obtained in the Church, which assuredly is fellowship in faith and worship, monarchical rule as regards faith and morals, had not the amalgamation of dogma and law become perfect in this period. It was not the Popes who brought about this fusion; they merely turned to account a mode of view which prevailed everywhere, and from which scarcely an individual dissented. In what has been represented from the beginning of Book II. of our Second Part, it has been shown that the legal view of religion was an old inheritance of the Latin Church; religion is lex dei, lex Christi. In principle, it is true, this view had been radically corrected by Augustinianism; but Augustine himself allowed the legal schemes to remain in many important particulars. Then there followed the mission of the Western Church among the foreign nations, pagan and Arian. With these it came into contact, not merely as an institution for religious worship, but as the Roman Christian system of civilisation and law. Not simply as a system of faith did it wish and venture to assert itself; it could assert itself at all, rather, only by placing its entire equipment, and all its principles, some of which had an extremely profane origin, under the protection of the divine law. Thus the Germanic and Romanic nations came to regard all legal ordinances of the Church as ordinances of faith, and vice versâ. Boniface and Charlemagne then set themselves to secure that the two would harmonise. The “must” became identical in the three sentences: “He who will be saved must believe as follows”; “the Christian must pay tithes”; “adultery must be atoned for by this particular penalty.” How busily the framing, or the codification, of Church law was carried on from the time when Dionysius Exiguus made his collection till the time of Pseudoisidore, is shown by the numerous collections which were everywhere produced — even in Rome still — by the rich synodical life of the provincial Churches, and which were meant to guard the independence, the rights, and the distinctive life of the Church in the new world of Germanic manners. Everywhere (prior to the ninth century) dogma fell quite into the background; but just on that account the feeling became habitual, of regarding all deliverances of the Church as legal ordinances. The Cluniacensian-Gregorian reform of the eleventh century put an end to numerous traditional ordinances pertaining to constitution and law, and replaced them with new ones, in which the independence of the Church in relation to the State, and of Roman universalism in relation to the national Churches, found ever stronger expression. As the result of this, there developed itself in the eleventh century an imposing legislation, which was gathered up and completed in Gratian’s collection — though this collection was in so far out of date and behind the facts, as in it the legislation was not yet determined throughout by the thought of the concentration of ecclesiastical power in the hands of the Pope. But besides their adoption of the Gregorian doctrines, this collection, and some older ones that preceded it, show quite a new turn of things, for they are the product of a study of law. Here also Gregory VII. was epoch-making. He was the great jurist in the papal chair, and from his time onward, the treatment of all functions of the Church in accordance with juristic science began to be the main problem. The study of law, carried on chiefly in Bologna, exercised an immeasurable influence on the intellectual vision of the Church throughout its whole extent; the study of law, indeed, moulded thought in general. Hellenism also at that time exerted an incalculable influence in the way of fostering this study. The Romo-Grecian legislation came into the West, and although, at the first, it began by modifying what was still a “barbarian” form of secular legal life there, and by building up a sovereign State with its laws and officials, it yet gradually exercised also a furthering influence on the construction of the strict monarchical Church system; for what is legal for the Emperor is allowable for the Pope; or rather — he is in truth the Emperor. It cannot be doubted that here also Rome knew how to gather grapes of thorns and figs of thistles. The new rights of its adversary, the Emperor, it applied to itself.

What had formerly developed itself under the force of circumstances — the Church as a legal institution — was now strengthened and built up by thought. Juristic thought laid its arrest on everything. And yet even here need controlled the situation. For when the impulse to reflect is once awakened, what else can those at first become, who still live in a world of abstractions and are blind to nature and history, but jurists and dialecticians? Thus there settled down upon the whole Church, even upon its faith, the spirit of jurisprudence, now grown conscious of itself. Everything was laid hold of by it. It was a strong force in what is styled “Scholasticism”; it governed the most powerful Popes (Alexander III. as Magister Rolandus), and it began to bring within its sweep the form in which the traditional dogmas were presented. Certainly this was an easy matter for it; for in their practical conclusions these dogmas had already been made to serve quite as legal means in a legal process. What still remained was to submit to juristic exposition even the central tenets of faith themselves, and so to justify and defend them “scientifically.” Here too, indeed, the material was not entirely in a raw state; to some extent, rather, the foundation stones had received a juristic shaping from the Latin fathers of dogma themselves (cf. Tertullian); but there was still an immense task presenting itself, to the full accomplishment of which an approach even had never been made; it was to re-think the whole dogmatic tradition in the spirit of jurisprudence, to represent every-thing under the categories of judge (God), accused, advocate, legal measures, satisfactions, penalties, indulgences, to make out of dogmas as many distinctions as obtain in secular legal order between universally valid, relatively valid, probable, consuetudinary law, positive law, etc., and to convert dogmatics into a chamber of justice, out of which there was afterwards to develop the merchant’s hall and the den of thieves.

But in the period we are considering, the Church was certainly the basis and sum of the highest ideals of the mediæval man, and the enormous contradiction on which one proceeded — had proceeded indeed, from the time of Augustine — of regarding the Church as at once the society of the faithful (societas fidelium), and as the hierarchically organised assemblage (coetus), of recognising the secular power in its divine right and yet suppressing its authority, was by many scarcely felt. Only at the end of the epoch did the inner antagonism become apparent; but the hierarchy had then already become the Church. Just at that time, therefore, the claim of the hierarchy, and specially of the papacy, was proclaimed as dogma, and the struggle of the civil powers against the despotism of the Pope was declared to be as really rebellion against Christ as was the assertion of the sects that the true Church is the opposite of the hierarchy. This will have to be dealt with in the following chapter.