Autocephaly in Ukraine: what if religion and law does not exist

In the absence of inter-Church law is meaningless to appeal to treaties 300 years ago, and the appeal to the canons in the absence of a legal system is nothing more than the justification of tyranny – that would help to resolve the problem of the unity and sovereignty of the Autocephalous churches, reflects the Secretary of the Synodal biblical-theological Commission of the Russian Orthodox Church Andrey Shishkov.

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So far I’ve refrained from comment on the situation around the Ukrainian autocephaly, because the events unfolded so rapidly that gave rise to the emotions and unwillingness to understand the merits. However, it is time to figure it out.

As I have already written many articles on this subject and my thesis “the Question of Supreme authority in the Church in modern Orthodox theology” is almost finished, I had some understanding of what is happening and what steps need to be taken to exit the crisis. I would like to mention here a few points.

1. The problem of declaring autocephaly is not regulated by Canon law of the Orthodox Church. The canons only once directly raised the question of autocephaly in connection with the Cyprus Church. However, this case does not specify criteria to determine what is autocephaly and the procedure of its proclamation.

In the Orthodox Church there is also no established custom of proclaiming autocephaly, which could be a source for legal solutions to the issue. In each case, the autocephaly was proclaimed in its own way. In most of them the act was accompanied by a rupture of communication between the new Autocephalous Church and kyriarchal Church (usually for decades). Can hardly be considered a “custom” suitable for a legal framework.

2. In the modern Orthodox Church is missing the Institute of law at the level of relations between Autocephalous churches (similar to international law). By analogy we call it religion and law, though it is somewhat jarring. There is a tradition that recognizes the existence of Autocephalous churches, which belong to the Orthodox Church is defined through the category of the Eucharistic communion.

The visible manifestation (manifestation) this communication is the joint participation of members of the various Autocephalous churches in the Eucharist (both at the level of the hierarchy and ordinary believers). The symbol of this communion is also a remembrance at the Liturgy, headed by Patriarch and other primates of the Autocephalous churches in accord with the sacred diptychs. However, the diptych is a custom. It can be the basis for law, based on custom, and may not be.

3. In the absence of a system of legal regulation at the pan-Orthodox level the relations between the Autocephalous churches are arranged on quite a different basis. The source of the organization of ecclesial order is not common to all participants right and unrestricted will of the Autocephalous churches, which appear here as various sovereigns (the sovereign will not necessarily belongs to the head of the Church, it can be localized in the Primate, the Synod or Council). Thus, the space of relations between the Autocephalous churches is the space of the clash of sovereign wills.

We call this system decisionists (there should be a reference to C. Schmitt). And any action in this space, from the point of view of law, can be qualified as arbitrariness. Accordingly, all the commentators who write about canonicity/necrosociety certain actions fall into the trap. The question of canonicity (legitimacy) can only be made when there is a system of law, which includes not only the legal code, and the practice of law enforcement, and authorities are watching the enforcement of laws.

The appeal to the canons in the absence of a legal system is nothing more than the justification of tyranny.

4. In the 1960-ies in the framework of the pan-Orthodox pre-Council process, attempts were made to create a total for the whole of the Orthodox Church, the legal system, but they failed. On the question of codified sources of law and draft documents designed to regulate certain aspects of inter-Church relations, nothing was done. The question of the institutions of enforcement on pan-Orthodox level was not even raised. Unfortunately, the Autocephalous Church was a persistent disregard of even those modest rules, which were adopted to regulate the pan-Orthodox pre-Council process.

Most of all succeeded to the Patriarchate of Constantinople, which constantly broke fixed pan-Orthodox pre-Council meetings, rules and regulations, but also in this part, and other Autocephalous churches. For example, the decision of Synaxis of the primates of the 2014 and 2016 directly contrary to the rules worked out, according to which all the key decisions on holding of the Cathedral was taken on pan-Orthodox meetings. It says only that no one had considered these rules as applicable law.

5. Respectively, arising between churches conflicts cannot be resolved in the context of Church law (because its not). Options for resolving bilateral conflicts are stacked in two scenarios: a) the victory of one sovereign over another (when one power is much superior to another), in this case one of the parties is losing its sovereignty, and recognizes the Supreme authority of the other party; b) compromise, which is reflected in the contract between the parties.

However, the second option does not mean that the agreement cannot be broken because there is no authority that monitors the fulfillment of contracts. In the absence of inter-Church law is meaningless to appeal to treaties 300 years ago, because the only guarantors executing this agreement are the will of the two sovereign parties. It’s as if now Austria suddenly declared that never go Hungary and presented the documents from the past confirming this (for example with Austria and Hungary is arbitrary, there can be any case of change of borders of the States to establish a system of international law).

Resolution of the tripartite conflict, with an even greater number of participants in decisionists the system even more difficult. Similar to how the Church of Constantinople appeals to the documents in 1686, claiming acanonical the current situation of the Ukrainian Church, the Russian Church could challenge the canonicity of the Greek Archdiocese in America, which was formed parallel to the jurisdiction of the Russian Church and would now become part of the Orthodox Church in America which received its autocephaly in 1970 from its mother Church. However, such disputes will only exacerbate the problem.

6. Today in Orthodox ecclesiology there are two different understanding of how the Supreme authority in the Orthodox Church. None of these models can be called conventional and normative. The first model relies on the existing practice of inter-Orthodox relations, and describes the Supreme power using the notion of autocephaly. According to this understanding, the Supreme power is localized in the Autocephalous churches, and is carried out within their borders. Each Autocephalous Church is sovereign and there is no government that would be dominated Autocephalous Church (hypothetically, this could be a pan-Orthodox Council, but his power would exceed the power of the autocephaly only because manifested through the addition of sovereign wills). This model is for short called “equal first”.

The second model is based on the theory promoted by the hierarchs and theologians of the Patriarchate of Constantinople and describes the Supreme power in terms of the championship. According to this understanding, the Supreme power in the Church, localized in the person of the Ecumenical Patriarch, ranking first in the diptychs of the Orthodox Church. This model assumes that the Ecumenical Patriarch has additional exclusive authority in relation to other churches (Diaspora, the proclamation of autocephaly, the Orthodox Council of arbitration, the pan-Orthodox Council, etc.). A model for brevity, can be called “first without equal” (a term that ran into use in 2014, Metropolitan of Elpidophor Lambriniadis).

7. It is important to understand that the right sole of the Ecumenical Patriarch to grant autocephaly has no other source than the sovereign will of the Cathedral Church of Constantinople, who in early September confirmed this right. Again let me remind you, the question of the proclamation of autocephaly is not in canonical sources. System of religion and law, in which this right could be incorporated, does not exist. There is no consensus other sovereign wills of delegating such rights to the Ecumenical Patriarch.

That is why the very existence of such law in the area of inter-Orthodox relations is arbitrary and its application in practice — an act of aggression by one sovereign against another.

8. Obviously, Islam cannot be viewed outside the socio-political processes. Churches do not exist in a “pure” space ecclesial and sophisticated space where ecclesiastical and political interests are intertwined. However, the influence of “external” political players does not change the decision-making mechanism in the space of inter-Church relations, because “secular” international law does not regulate relations between the churches, and therefore the situation of the clash of sovereign wills (simple sources that make up the sovereignty have become more complex in the description). The solution to the conflict will still be in a space of inter-Church relations, even if the participants will podtalkivaet to action from the “outside”.

9. The internal conflict of the existing system of inter-Orthodox relations is the conflict between two basic values: unity and independence. How to combine efforts to identify pan-Orthodox unity with the independence of the Autocephalous churches? Existing approaches, as illustrated Cretan Cathedral obviously cannot cope with this. The approach associated with the subordination of the Autocephalous status of the sovereign will of the Ecumenical Patriarch, does not suit Autocephalous Church (or at least a significant part of them) who are not ready to see him as a guarantor of unity in this way. On the other hand, the emphasis on absolute independence and autocephaly does not achieve unity, because the space in which the Autocephalous churches are to be found, becomes the space of the clash of sovereign wills. The whole system of relations between the Autocephalous churches for 100 years is in a permanent crisis, which in recent years has worsened.

10. Only, in my opinion, the way to resolve the conflict between unity and independence, is the creation of a pan-Orthodox level of the legal system, which would be transferred sovereignty (the notorious rule of law). In other words — government of laws and not of men. In practice, this means a return to pan-Orthodox conciliar process and of its main principles — first, to collegiality and consensus. Only by following these principles, it is possible to create a legal system which, on the one hand, United all the Orthodox world, and, on the other — defended the independence of the Autocephalous status. In the present action the Church of Constantinople I regret to see the departure from the principles of the pan-Orthodox conciliar process and the depreciation of the results of the Cretan Cathedral. Can we say that it is a statement of its final failure?

In conclusion, I would like to say that I have restrained pessimism about the prospects of reconstructing the system of inter-Orthodox relations, because it depends on the very sovereign wills, which have been described above. In addition, an obstacle is inherent in modern Orthodox (and at the level of culture and at the level of theology) dismissive attitude to the law. Part of our modern Orthodox ethos is a rhetoric of “power of love, not law” and ridiculing “yuridizm”.

Source – Facebook Andrey Shishkov

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