Die gesetzesgleiche Geltung des kanonischen Rechts in der Spätantike

• Autores: Thomas Rüfner
• Localización: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte.: Kanonistische Abteilung, ISSN 0323-4142, Vol. 127, 2010, págs. 1-37
• Idioma: alemán
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• Resumen

  • According to the prevailing opinion among legal historians, the canons of the church were explicitly granted the force of law in the late Roman Empire by imperial legislation. Most authors credit Justinian with the decisive step, but many believe that several constitutions of the fifth century already paved the way to the acceptance of the cannons as sources of the civil law. In this paper, it is shown that the constitutions of the fifth century contain no such provision. The sources which are often cited in support of the prevailing view(esp. C. Th. 16,2,45=C. 1,2,6 and C. 1,2,12) cannot even be interpreted as first steps towards full recognition of the canons as equal to the laws of the Emperor. By enactments such as C. 1,3,44 and Nov. 6,1,8, Justinian did not yet integrate the canons into the legal system of the Empire, although this is frequently asserted. Only Nov. 131,1 of 545 actually contains the provision that some canons have to be regarded as laws of the Empire. However, this provision relates only to the fifty-four canons of the first four ecumenical councils. It does not apply to the large corpus promulgated by regional synods.