I’ve been reading through Fr. Patrick Viscuso’s book “Orthodox Canon Law,” which is a fantastic introduction to the Orthodox canonical tradition, and I just wanted to write a short article highlighting how the Church has historically viewed the relationship between canonical and imperial authority, using the example of divorce and remarriage as a case study.
It is generally accepted in the Orthodox Church that the writings of Joannes Zonaras (11th century) and Theodore Balsamon (12th century) are authoritative when interpreting the meaning of the holy canons, something evidenced by the general practice of the Church’s canonists and theologians through the centuries, as well as saints such as St. Nicodemus the Hagiorite, who frequently cited these two throughout The Rudder (though sometimes disagreeing with them).
Thus, it is their interpretation of St. Basil’s 9th canon that I would like to examine. In this canon (which you can read here), St. Basil says that it is lawful for marriages to be dissolved due to fornication, however custom dictates that only men are allowed to dissolve marriages when their wives abandon them: “Here then the wife, if she leaves her husband and goes to another, is an adulteress. But the man who has been abandoned is pardonable, and the woman who lives with such a man is not condemned.” Wives, on the other hand, when abandoned by their husbands, are not to dissolve their marriages, but are stuck with their husbands until the end.
Zonaras and Balsamon were interpreting this canon alongside the imperial legislation of Emperor St. Justinian the Great, which appears to contradict St. Basil’s canon by allowing both men and women to dissolve their marriages for certain reasons. According to St. Justinian, either the husband or the wife can dissolve their marriage if their spouse plots against the empire, commits adultery (or makes false accusations of adultery), attempts to kill their spouse, or abandons their spouse for worldly pleasures (see footnotes 75-85 in Fr. Viscuso’s book for citations), something that clearly conflates with the teachings of St. Basil. What makes this significant is that Zonaras and Balsamon treated both of these teachings as equally authoritative within the Church, and thus their commentary attempts to reconcile them:
Zonaras: But this great Father [Basil] states that these things prevail according to the ecclesiastical custom at that time. And from the Novel of the emperor Justinian promulgated later concerning the dissolution of marriage, which is situated in book 28, title 7 of the Basilika, the following is reckoned amongst the causes by which it is permissible for women to dissolve marriage; if the husband lies with another woman in the same house or city, and after being warned on the part of the wife, he does not desist from sexual intercourse with that woman, it is permitted for wives to dissolve marriage on account of jealousy.
Balsamon: The saint [Basil], after being asked what ought to happen to the spouses if one of them might enter another marriage or even fornicate, made a reply from various writings and the custom held at that time. However, since Novel 117 of Justinian, situated in title 7 of book 28, all but transformed everything in such a canon, read ye this, and likewise Novel 111. And plainly from chapter 1 of the same title canon, read up to also 6, learn ye by how many ways marriages are dissolved and how presently the adulterous spouses or even fornicators are punished by the civil law.
As is clear, both Zonaras and Balsamon regard the imperial legislation of Emperor St. Justinian as on par with the canons of St. Basil! This is why they are able to explain how St. Basil’s canons that forbade wives from dissolving their marriages were simply giving weight to a specific custom that existed in his own day (something Basil himself implies in the canon), whereas the decrees of St. Justinian are seen as further developing this idea and thus being the more authoritative teaching on the issue. This is why, to this day, the Orthodox Church allows for either the husband or the wife to dissolve the marriage if one of these grievous offenses is committed (as all of these flow from the Scriptural reasons for divorce, those being adultery per Matthew 5:31-32, and abandonment and unbelief per 1 Corinthians 7:10-15).
The implications of this are definitely something to meditate on: because of how harmonized the Church and State were in the days following the reign of Emperor St. Justinian, imperial legislation, while not serving as a source of canonical authority in and of itself, nonetheless has proven to be a legitimate authority that one can appeal to when trying to understand certain canonical prescriptions. This is further evidenced not only by recent Fathers, like St. Nicodemus, who also cite St. Justinian’s decrees when interpreting the canons, but most especially by the fact that the Nomocanon, one of the greatest sources of canon law in the Orthodox Church, is a combination of both civil and ecclesiastical law! Fr. Viscuso himself comments on Zonaras and Balsamon’s apparent acceptance of civil law as authoritative by saying, “[civil legislation] is being regarded as a means to bring order to marriage and, in this sense, governs the Church’s life and is a legitimate source of [Church] law.”
The reason I bring all of this up is because the canonical tradition of the Church demonstrates this point emphatically: the Church and State, while truly distinct, are not to be separated. The Holy Spirit can and has guided the Church through the ministry of a Christianized State, and I would posit that this is indeed the way in which God wishes to bring glory to His people. God doesn’t just want us to convert individuals (though He does want that), but we are to subject entire nations and cultures to the Divine Throne. As the Great Emperor himself says:
There are two greatest gifts which God, in his love for man, has granted from on-high: the priesthood and the imperial dignity. The first serves divine things, while the latter directs and administers human affairs; both, however, proceed from the same origin and adorn the life of mankind… if the emperors administer equitably and judiciously the State entrusted to their care, general harmony will result, and whatever is beneficial will be bestowed upon the human race. (St. Justinian the Great, quoted from Fr. Asterios Gerostergios’s, Justinian the Great, the Emperor and Saint)
Addendum: A Note on Divorce and Remarriage
If you’re scandalized by Orthodoxy’s acceptance of some kind of divorce and remarriage, don’t be. It’s well known that many patristic writers endorsed the practice, including not only St. Basil, but also Sts. Epiphanius, Theodore of Canterbury, Ambrosiater (who is either St. Ambrose or St. Hilary), and Cyril of Alexandria. Interestingly, both Basil and Cyril were appealed to by a delegation from Venice at the Council of Trent, trying to persuade the council fathers to change their wording on the condemnation of divorce and remarriage to allow for the continuation of the Greek practice in the Roman Catholic Church’s eastern rites. I’m not saying Trent approved of divorce and remarriage, however this at least establishes that the practice was alive and well even in the Roman Catholic eastern rites at the time, and Trent did not explicitly try to put a stop to this. In fact, many Roman Catholic apologists today try to use this as a defense of Pope Francis’ teaching on divorce and remarriage in Amoris Laetitia, an issue I won’t comment on further.