“Canonical ties" – what kind of thing is this?

The reason for writing this article was a response of the head of the State Service for Ethnopolitics and Freedom of Conscience (DESS) Viktor Yelensky, published on the Dialog.tut resource, to the German professor Thomas Bremer, who analyzed the conclusions of the religious expertise by DESS regarding the Statute of the Ukrainian Orthodox Church at the request of the Civil Movement "Myriany" (Laity – Trans.) It's worth noting that DESS experts claimed that the UOC maintains canonical ties with the Moscow Patriarchate.

This is despite the fact that any mention of the Russian Orthodox Church (ROC) was removed from the UOC Statute by a decision of the UOC Council on May 27, 2022. Professor T. Bremer arrived at the following conclusion: "The REC (Report of the Expert Commission – Ed.) has significant flaws and shortcomings in both the methodological and the factual respects. It takes into account facts which speak in favor for the outcome and neglects the others. It is biased in its evaluation and misrepresents given facts. It presents no positive evidence of any kind that the UOC still belongs to the ROC. Therefore, the REC cannot be regarded as a proof, and its results are not convincing."

Mr. Yelensky objected to this assessment and wrote a response to Professor T. Bremer, in which he called his conclusions erroneous. V. Yelensky's letter contain statements that deserve separate attention, but we will focus on the different understanding of the term "canonical" by V. Yelensky and T. Bremer.

It should be noted that we will consider the understanding of this term from the perspective of government bodies, rather than from the perspective of believers, clergy, and hierarchy.

In essence, we are compelled to write absurd things because the Constitution clearly states that "the Church and religious organizations in Ukraine are separate from the state" (Article 35). Therefore, the internal rules of any denomination (and canons pertain precisely to internal rules) should not be of any interest to the state in any way.

However, we live in a reality where, despite the war and devastation, the authorities suddenly became concerned with the issues related the canons of Orthodoxy. Therefore, we need to formulate what government agencies and state officials who are involved in regulating public relations in the religious sphere understand by "canonical."

A little bit of theory on state and law

In this context, we will quote a statement by Liudmyla Filipovich, a religious studies expert and a member of the group that conducted the expertise on the Statute of the UOC. In one of her interviews, she stated that "within church law, canonical ties are legal relationships, not an illusion... based on this law, the Church has existed since 325 A.D." Here, L. Filipovich, whether due to ignorance or intentionally, makes a significant mistake. The issue is that in the modern world, canonical norms cannot be considered legal norms, at least not all of them. If we open any textbook on the theory of state and law, we will read that various norms called social norms are the regulators of social relations. These are norms of morality, customs, corporate norms, political norms, religious norms, legal norms, and so on.

The fundamental distinction between legal norms and all other norms lies in the fact that the enforcement of legal norms, if necessary, is ensured by state violence. No other social norms use this instrument. They have other tools: social condemnation, exclusion from various formal and informal communities, conscience, and so on. But legitimate state violence is applied solely to enforce legal norms. Can a modern secular state take on the role of enforcing canonical church norms? Absolutely not.

L. Filipovich mentioned the year 325 A.D. for a reason. That year marked the First Ecumenical Council, which adopted a series of dogmatic definitions and canonical norms. These determinations were signed by Emperor Constantine the Great, and his signature transformed the Council's decisions into legally binding norms to be enforced throughout the Roman Empire, guaranteed by the full force of the state apparatus. The same case was with all the subsequent Ecumenical Councils and most Local Councils. However, we do not live in the Roman Empire; we live in a country that has declared the separation of Church from the state and freedom of religion for all citizens. Accordingly, the Ukrainian state cannot assume the commitment of enforcing all canonical rules and prescriptions, starting from the year 325 A.D., and thus cannot consider canons as legal norms.

This does not mean that the state should not care about religious norms and protect them alongside other social norms.

Let's provide an example: two businessmen establish a company and write an articles of incorporation, in which they fix their agreements on managing the company. This articles of incorporation is a corporate norm. The state registers it, thereby guaranteeing its compliance by the participants. If one businessman violates the rules laid out in the articles of incorporation, the other can turn to the courts and, using the state's force, compel the partner to adhere to their agreements. In this case, the act of registration is a formal procedure by which the state decides whether it will recognize the rules that two private individuals have established for themselves or not.

The same thing happens with norms that believers call canonical and that, from the state's perspective, are corporate norms. If the state, in some way, were to register the decisions of Ecumenical and Local Councils or declare its intention to enforce them using the state's force, then it would be as L. Filipovich said: Ukraine would consider them legal norms, and it would have to enforce their compliance. However, we all understand that this is not the case.

Problems with the сoncept of "сanonical"

A separate question is what to consider as canonical law. What falls under the concept of canonicity and what doesn't? There is no unanimous opinion on this issue even within the Church itself. It can be said that canons are only those rules sanctified by the authority of Ecumenical Councils, making them universally binding for Orthodox believers. These are the rules of the seven Ecumenical Councils, as well as the eight Local Councils, the rules of the Holy Apostles, and those of the Twelve Holy Fathers, affirmed by the Sixth Ecumenical Council in 692 A.D. If you look at the formulations of modern church Councils, Synods, or decrees of diocesan bishops, you'll find that they often claim to be based on some rule from the mentioned list.

However, this would mean that canonical law ends in the year 787 A.D. (the Seventh Ecumenical Council). All other church rules adopted at various Councils or even unilaterally by patriarchs or other hierarchs of the Church do not possess the same authority, are not universally binding, and pertain only to the respective Local Churches or individuals they are addressed to. They can be repealed, amended, or even forgotten. Hence, they cannot be considered canons of the Church that everyone must adhere to.

But in this case, there is a problem that many significant contemporary issues are not addressed by these canons. For example, the proclamation of autocephaly. There is nowhere written who or how it is proclaimed, with whom it is coordinated, and so on. How should canons be applied in such cases, and which principle should be used? Is everything allowed that is not explicitly prohibited, or only what is explicitly allowed? Furthermore, are these approaches applicable to canonical rules? For instance, many of these rules require actions to be taken "in the spirit of love." Can the state determine where this "spirit of love" exists and where it does not?

Another viewpoint is to include all decisions of all governing bodies of different Churches in the corpus of canonical law. But this leads to problems when the decisions of some Councils contradict those of others. For example, in the past, the Local Councils of the Bulgarian, Romanian, Serbian, and other Churches proclaimed autocephaly, while at the same time, the Council of the Constantinople Church did not agree with this and referred to them as schismatics. Which decision is canonical? The Ukrainian Orthodox Church declared its full independence and autonomy, while the Russian Orthodox Church considers the UOC part of the ROC. Both positions rely on the decisions of Councils.

What is more canonical in this case?

This issue can be debated, but it must be agreed that the state simply cannot answer this question. It does not possess the criteria and tools to determine what is canonical in the Church and what is not.

There is also another problem. Any rule (canonical rules are no exception) is a rule because it should be uniformly applied under the same circumstances. In legal terms, this is called the hypothesis, which describes the real-life conditions under which a particular rule is applied. However, the real-life conditions today are completely different from those in the first millennium when the Ecumenical Councils were held and even later, in the 16th, 17th, and other centuries. As for doctrinal norms, they remain unchanged, but the rules regulating Church governance adopted 100, 200, or 300 years ago may simply be unenforceable due to changing circumstances. There is an opinion that many canonical norms are now merely historical artifacts rather than functional rules. So, what should be considered active canons? The question remains open.

Autocephaly, autonomy, and other statuses

The DESS expertise regarding the UOC Charter suggests the idea that if the UOC did not proclaim autocephaly, didn't use that precise term, then it continues to be a part of some autocephalous Church, i.e., the ROC. The experts claim that canonical law does not recognize statuses such as "fully self-reliant and independent" or "autonomy with broad rights."

However, canonical law, if we consider it to be the rules of the Ecumenical Councils, does not distinguish between an autonomous and autocephalous Church. These rules do not define what rights one or another Church possesses under different statuses.

Professor Bremer draws attention to this and states, "Awkwardness in canon law can be a criterion only for an evaluation which is confessional, i.e. which is made from a theological or inner-ecclesial standpoint with a normative claim. An evaluation that means to be neutral, i.e. from a standpoint of religious studies, as the REC does (REC 5), may note the awkwardness, but cannot take it into account, as it has to be descriptive and analytical." In other words, the definitions of statuses, mutual rights and obligations, and so on, are the prerogative of the Churches themselves, not the state.

At the UOC Council in Feofaniya on May 27, 2022, the status of the UOC was determined as "fully self-reliant and independent." Yes, canonical law does not recognize such statuses. Nor does it recognize the status of autonomy and many others (again, depending on what one understands as canonical law). However, this is an internal issue of the Church, a matter of the relationship between the UOC and other Local Churches, but it has nothing to do with the state.

Professor Bremer notes this as he writes: "The fact that a certain  form of organization of a group (in this case: the UOC) does not exist within the self- understanding of a religious community (in this case: Orthodoxy) can be an issue for  that religious community, but it cannot affect that group’s freedom of religion. In a  democratic society, everybody has the right to organize a religious group according  to  previously  unknown  rules  and  procedures,  whatever  they  might  mean  in  theological terms."

All other Local Churches have accepted the UOC's status by fact and continue to consider it a grace-filled Church, a part of the Body of Christ. But even if they had called the UOC schismatics and severed ties with it, it would be a matter for the UOC to deal with, while the state would have no business with it.

The same Bremer points out that the UOC-KP was registered by the state in 1992 without any issues. Yet, in the entire Orthodox world, the Kyiv Patriarchate was considered a schismatic structure, and the authorities were not concerned. Why, then, did the state previously stay away from church canon and status issues and now suddenly become preoccupied with them?

One of the points in question is the idea which can be found in the DESS expertise that an independent church needs a “tomos” (REC 7.2). In Ukraine, the “Ukrainian Orthodox Church – Kyiv Patriarchate” existed for more than 25 years without any tomos, claimed to be autocephalous, and was in full accordance with Ukrainian law (though inconsistent with Orthodox ecclesiology). Why, then, did the state previously stay away from church canon and status issues and now suddenly become preoccupied with them?

V. Yelensky's error (or rather, dishonesty) 

As we can see, the German professor doesn't oversimplify issues; he doesn't reduce canonical law to some simple and universally understandable phenomenon. This not only demonstrates his deep knowledge of the Orthodox Church's legal issues but also his professional culture, which prevents him from speculating on existing ambiguities. Unfortunately, the same cannot be said for V. Yelensky. He allows himself to interpret the term "canonicity" as it suits him at the moment.

For example, in his response to Professor Bremer, Elensky writes: "Here's another methodological problem where I must disagree with you. You write that '...religious expertise, for a state institution, cannot be based on canonical law.' But 'religious studies' as a scientific discipline that studies, among other things, religious institutions, simply cannot avoid in its analysis examining the status of one or another ecclesiastical unit according to the norms by which that unit operates within the ecclesiastical integrity, i.e., according to canonical law."

What is dishonest about V. Yelensky?

Firstly, he doesn't define what canonical law is, its scope, and the grounds on which certain church rules are taken into account while others are discarded. For example, if V. Yelensky considers the provisions of the ROC Charter, where the UOC is designated as part of the ROC, to be mandatory on the territory of Ukraine, why doesn't he and other critics of the UOC consider the decisions of the ROC's Synod in 1997, which anathematized Filaret Denisenko, or the decisions of the Kharkiv Council of the UOC in 1992, which deposed him from the position of primate? Is all of this, from V. Yelensky's perspective, canonical law or not?

Secondly, if the religious expertise conducted were purely scientific, with no legal consequences, it would have every moral right to exist. However, based on this expertise, the state intends to ban the UOC and deprive six million Ukrainian citizens of their right to belong to the Church they consider to be true. Local authorities, in turn, are "prohibiting" the UOC and justifying the need for "transfers" of UOC churches to the OCU based on this expertise.

In reality, V. Yelensky and others like him are trying to substitute the term "administrative" with the term "canonical," interpreting the latter term as they see fit. It is impossible to prove the administrative connection between the UOC and the ROC due to its absence. Thus, they attempt to replace the clear term "administrative" with the vague "canonical" and argue that the UOC submits to the aggressor state.

What can the state understand by canonicity?

A secular state does not possess the instruments to determine what is canonical and what is not. Furthermore, even within the Church, there is no unanimous opinion on this matter. Therefore, the state can resort to only one method: it can treat canonical norms as a type of corporate norm. Accordingly, every religious organization has the right to determine for itself what is canonical and what is not. If problems arise between such organizations based on these interpretations, it is the issue of these organizations themselves, not the state's concern.

For example, Filaret Denisenko considered the decisions to defrock him and excommunicate him from the Church to be non-canonical and did not obey them. He faced issues with the Church, with none of the Local Churches wanting to maintain communion with him and his followers. But this did not affect his exercise of the right to religious freedom. He successfully registered communities, acquired land and other property, built churches, and even received support from the state.

Did the state take away St. Vladimir Cathedral from Filaret based on the fact that he was excommunicated from the Church? Did it prohibit him from using the title "Patriarch of Kyiv and All Ukraine"?

Filaret established his Kyiv Patriarchate, created its Charter, and formulated the norms by which his religious organization would be governed. The state then registered this Charter and, so to speak, ensured protection for it. The same thing happened with the OCU. Despite the fact that there were numerous violations of canonical rules, the state was not concerned, and it should not be.

However, the same approach should be applied to all other cases. If the UOC, in its Charter, declared its independence and autonomy, the state should acknowledge it as such. If there is evidence that the UOC continues to follow the ROC's decisions, that Ukrainian hierarchs still attend the ROC's synods, that the newly elected head of the UOC receives blessings from the Moscow Patriarch, and so on, then, indeed, it can be claimed that there is a connection between the UOC and the ROC. But this should not be done based on "canonical law," a term under which every government official can interpret whatever they please.

One could suggest adding the following definition to the Ukrainian Law "On Freedom of Conscience and Religious Organizations": "Canonical law is a set of rules of a religious organization that it considers binding for itself, by which it conducts its activities, and which must be reflected in the religious organization's charter."

In any case, if the state uses the term "canonicity" and "canonical law" in its laws, it must provide a clear definition of this concept, specifying what, from the state's perspective, is considered canonical law and what is not.

Otherwise, we are justified in claiming that, under a plausible excuse, the state simply wants to deal with an unwanted religious organization.