Orthodox Reception of Ps.-Pope Sylvester I and Ps.-Symmachus’s Canon: “The First See is Judged by no Human Being”: Byzantine Canon Law from Photios to Markos of Ephesus (Acta: 23rd Congress, Society for Law of Eastern Churches) .pdf

Discoveries and Study: (1.) The discovery of the use of Gratian D 40, c. 6 in Byzantium "The first see cannot be judged by anybody" (2.) The use of the Photian 880 Synod at Ferrara-Florence (3.) The discovery of the forgeries of

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  © Christiaan Kappes 2017 © Christiaan Kappes 2017 " Orthodox Reception of Ps.-Pope Sylvester I and Ps.-Symmachus’s Canon: “The First See is Judged by no Human Being”: Byzantine Canon Law from Photios to Markos of Ephesus Christiaan Kappes Introduction On the Feast of Triumph of Orthodoxy (March 20, 2016), his Holiness, Patriarch of Moscow and all of Russia Kyril I, gave a speech strongly criticizing the idea of union with Latins, concentrating himself on former Orthodox Christians who became “Eastern Catholics” or “Uniates” centuries ago by signing the  Definition or !"#$   at Florence on July 06, 1439. In his homily, the patriarch contrasted the Ecumenical Patriarch of Constantinople and Eastern Orthodox unionists to the example set by the life and teachings of Markos of Ephesus, “Pillar of Orthodoxy”, who refused to sign the decrees of Ferrara-Florence. Patriarch Kiril commented as follows: I was enthroned Patriarch on February 01, 2009, on the very feast of St. Markos of Ephesus –who alone saved Orthodoxy from the Unia– (…) The Patriarch of Constantinople agreed with most of the bishops and they went to (…) Ferrara and Florence. There, at the Council, the Patriarch and the bishops signed the union with Rome. Only Markos of Ephesus did not sign. He believed that there cannot be union under fear, nor under pragmatism (…) Most importantly, there can be no union through threat of schism. They became united with Rome while destroying unity with a significant part of the Orthodox world. I was consecrated bishop forty years ago on the feast of the Triumph of Orthodoxy, which signifies a victory over every heresy, and enthroned patriarch on the Feast of St. Markos of Ephesus. I don’t see this as a coincidence! (…) I am here to protect the unity of the Orthodox faith and to oppose heresy and any enticement (. . .) 1  Free of desire to be disrespectful or to engage in polemics with His Holiness, I wish only to highlight his summary of history delivered to thousands of Orthodox faithful at Christ the Savior Cathedral. It is a prime example of how polemics have dominated hagiographical representations of Markos making his historical person and deeds almost unrecognizable. Still, the setting and  broadcast of this appeal to Markos illustrates how relevant the life and teaching of Eugenikos is to Orthodox believers of today. Even Patriarch Kiril professes his desire to model his patriarchate on Markos’s words and deeds. Yet, what is the historical reality of Markos’s deeds that might serve as the typos  for Kiril’s patriarchate? In answer, I turn to the Patriarch Joseph II of Constantinople. Contrary to popular narratives, the patriarch never signed the decree of union or  Definition of Florence, for he had died June 10, 1439, well before the July 06, 1439 signing of the !"#$  . 2  What is more, for Patriarch Joseph’s funeral, Markos of Ephesus lovingly composed verses in Joseph’s honor, *All translations are my own unless citing an edition. I thank Dr. Panagiotis Athanasopoulos (Foscara) for  providing the critical edition of Markos’s Eugenikos’s unpublished  Latins’ Dissension with Roman Solutions , cited below,   and for sharing his discovery of the passage of Neilos’s Kabasilas’s  De primatu  papae  used in Markos’ work. 1  Kyril   G UNDYAYEV , “Homily on the Triumph of Orthodoxy (March 20, 2016)”, (accessed 31 April, 2018): https://www.youtube.com/watch?v=gGN3pz0oKuo (I have adapted the translation the subtitled translation). 2  Joseph G ILL , The Council of Florence , Cambridge 1959, 267.  © Christiaan Kappes 2017 © Christiaan Kappes 2017 # expressing warm sentiment very different from the narrative known to His Holiness, Patriarch Kyril , tarnishing the name of Patriarch Joseph. For his part, Markos penned: This famous Joseph, fiery-minded in power of speech and dogmas, in grace of speech and dogmas, in grace of the teachings of sages, it is he who is the God-inspired font, who is at the forefront of fighting words by means of inspired words. He is the most unshakeable  pillar of truth and the most conspicuous torch of Orthodoxy; what is more, the brightest laborer in good works and the most delightful lauder of beauty, who is an exacting magistrate of dogmas against the erring and is a most orderly superintendent over the lax. Yet, o greatest Father, o glory of Fathers, keep now in mind your affectionate children, for you stand before God, the magnificent Trinity! 3  I should like to add that the equally vociferous opponent of Ferrara-Florence, Markos’s younger sibling, the deacon John Eugenikos, paid similar respects to his deceased Father in the Faith.  4  What should be made of Patriarch Kiril glossing on past history in order to deliver a relevant message to contemporary Russians about the Ecumenical Patriarchate and its relationship to Rome? It is difficult to say, since so little of Kiril’s illustration reflects the life and actions of Markos. At the end of this study, I will suggest a series of activities that a modern patriarch can  be expected to follow should he strictly imitate the example of Markos. In the narrative above, putative fault of the Ecumenical Patriarchate hinges on the signing of the  Definition in response to Latin enticements. Historically, despite the fact that Joseph II never signed the  Definition , the Orthodox archbishop of Kiev-Moscow did in fact sign. 5  While the archbishop of Kievan Muscovites had officially signed onto the union on 06 July, 1439, the first patriarch of Constantinople to join the union dates to May 04, 1440, after Emperor John VIII invested Metrophanes II of Cyzicus with the patriarchal dignity. Since Patriarch Joseph II never signed the  Definition  of Florence, ecclesiastical union was technically not yet achieved in 1439, from the Greek Orthodox perspective, for even the Greco-unionist bishops at Florence openly explained to Pope Eugenius IV that they were unable accomplish any binding doctrinal decisions on weighty matters at Florence without the presence of their full synod. 6  Markos held an analogous position for refusing his signature to the  Definition of Florence. As he was subject to the patriarchate of Constantinople, it was unlawful for him to try to enact canonical legislation in the name of his patriarchate without enough bishops gathered around their  primus to form a synod. 7  For this reason, Pope Eugenius IV and Emperor John VIII urgently needed to secure a 3  Markos E UGENIKOS , %#&   µ '('")*+,+#-   ./01#-   +#&     23(45)(#&   [  1+67#)   89)+,/)#)   4:$    +;5   9'+"),"7<5   =*1>/  ] , S. E FSTRATIADIS  (ed.)  , .((?<1)'1+)(;$    @,"#$   1 (1908) 101–102. 4  John E UGENIKOS , =*,55#-   A)'(B5#-    23C45)(#&   [  1+67#)   4:$    +;5   '3+;5   =*1>/  ] , S. E FSTRATIADIS  (ed.), .((?<1)'1+)(;$    @,"#$   1 (1908) 102. 5  For the official support of both the Russian Church and state for Isidore of Kiev’s role at the Council, until after his return, see Innokenti P AVLOV , “The Ferrara-Florentine Union: A View from Moscow: Historical Retrospective and Contemporary Appraisal”, in Christian Unity: The Council of Ferrara- Florence 1438/39–1989 , Giuseppe A LBERIGO  (ed.), Bibliotheca Ephemeridum Theologicarum Lovaniensium 97, Leuven 1991, 502–505. 6  Sylvester S YROPOULOS ,  Les “Mémoires” du Grand Ecclésiarque de l’Église de Constantinople Sylvestre Syropoulos sur le concile de Florence (1438-1439) , Venance L AURENT (ed.), Concilium Florentinum Documenta et Scriptores: Series B, Rome 1971, vol. 9, 128. 7  See Geminianus I  NGHIRAMUS ,  Diarium Geminiani Inghirami , in  Fragmenta protocolli, diaria privata,  sermones , Georg H OFFMAN  (ed.), Concilium Florentinum Documenta et Scriptores: Series B, Rome: Pontificium Institutum Orientalium Studiorum, Rome 1951, vol. 3, fasc. 1, 37, who attests Markos obtaining concession from the emperor to withhold his signature until the canonical conditions (viz., the election of the next patriarch) allowed.  © Christiaan Kappes 2017 © Christiaan Kappes 2017 $ new pro-unionist patriarch who could canonically establish the ecclesiastical union, not merely a symbolic union in virtue of a number of episcopal and abbatial signatures at Florence. For his  part, Patriarch Kiril, like Markos of Ephesus, plays a highly significant role in his leadership of the Russian Church. If Kiril wishes to emulate Markos’s mindset or !"#$% µ &  when solving  problems within contemporary Orthodoxy, then the principal problem between the Catholic and Orthodox Churches, without a doubt, is (papal) primacy within Orthodox ecclesiology. Clearly, then, an estimation of Markos’s jurisprudence and theology on the papacy is a major desideratum . 1. Markos Eugenikos ! s Life in Context Manuel-Markos Eugenikos (c. 1392–1445) ranks as one of the most important points of reference for Orthodoxy in the second millennium of Christianity. As a young anchorite living with his spiritual father on the isle of Antigone, he first learned about the famous anti-Latin and champion of Orthodoxy, Joseph Bryennios, due to his debates with Latins in 1420. Afterwards, Markos wrote Patriarch Joseph II to support him and encourage him in the  filioque  discussions. 8  This was Markos’s first entry into the public life of his Church. Upon establishing an intimate friendship with Bryennios, the same inculcated Markos with reverence for the canons related to the Photian synodical  Acta (879–880). 9  Bryennios likely created opportunities for Markos,  placing him in the middle of the literary circle of Makarios Makres and Emperor Manuel II. Markos also followed the terminology and tradition of Makres, especially reverencing the  Apostolic Constitutions of the fourth century, which were inscribed into the sixth-century nomocanon of John Scholastikos. Likewise over fifty canons, of about eight-four or eight-five total canons, from the srcinal Apostolic canons were equally absorbed into the Latin canonical collection of Dionysius Exiguus in the same century. 10  These similar canonical collections were appropriately symbolic of one undivided Church. Ironically, we shall see that the pope of Nicaea I, St. Sylvester, was to become the symbol of canonical division between East-West in their respective canonical histories. Ps.-Sylvester’s sixth-century apocryphal canons of Nicaea, and other forgeries, were to drive an irreconciliable wedge between Latins and Greeks in the field of canonical jurisprudence during their debates at Ferrara-Florence. After Manuel II’s successor, Emperor John VIII, witnessed Markos speaking in Constantinopolitan debates, he appointed Markos the leader of a two-man commission in  preparation for the Council of Ferrara in 1437. Markos’s influential companions must have recommended him to emperor John VIII for researching Latin and Byzantine theology and canons for upcoming discussions. Markos diligently studied ( c.  1437) Neilos Kabasilas’s (†1363) canonical work,  De primatu papae , apotheosizing the Photian synodical  Acta  of 880. 11  At this 8  Markos E UGENIKOS ,  Marci ad Oecumenicum, in  Marci Eugenici Metropolitae Ephesi opera anti-unionistica , Georg H OFFMAN , Manuel C ANDAL , et al (eds.), Concilium Florentinum Documenta et Scriptores: Series A, Rome 1977, vol. 10, fasc. 1, 167–168. 9  Joseph B RYENNIOS ,  DBC#$     E  ´  94"F   +G$    H46'$    +"),A#$  , in   =*1I/    J'5'7#&    +#&     K"-4556#-   +L   43"4H05+' , Eugenios B ULGARIS  and Eirinaios D ELIDEIMOU  (eds.), Thessaloniki 2 1991, vol. 1, 137–139. 10  Danilo M OROLLI ,  Il diritto dell’impero romano d’oriente: Introduzione alle fonti e ai protagonisti , Kanonika 21, Rome 2016, 157. 11   S YROPOULOS ,  Les “Mémoires” , 170; John M ONFASANI , “The Pro-Latin Apologetics of the Greek Émigrés to Quattrocento Italy”, in  Byzantine Theology and its Philosophical Background  , Antonio R  IGO  (ed.), Studies in Byzantine History and Civilization 4, Turnhout, 2011, 167–168.  © Christiaan Kappes 2017 © Christiaan Kappes 2017 % time he was also imperially selected and elected Metropolitan of Ephesus to represent the emperor’s interests at Ferrara. 12  Markos cited Neilos’s work early at Ferrara in 1438. 13  Eugenikos also explicitly endorsed the canonical learning of the moderate conciliarist, Nicholas of Cusa (†1464), with respect to the canons surrounding the Photian schism. 14  Markos had obtained Greek manuscripts for his acquaintance Cusa in Constantinople. 15  Despite good relations with Conciliarists, Patriarch Joseph and his colleagues at Ferrara-Florence were unable to fathom an ecumenical council without inviting the pope of Rome. 16  Patriarch Joseph’s position, in league with the legates of Emperor John VIII, was chronicled by the entirely unsympathetic and even antagonistic Conciliarists who had failed to convince Orthodox to abandon the pope, as if he were not a necessary element for an ecumenical council of reunion with the Latin West: The [Greeks] were asked, whence (…) they believed an ecumenical synod to be properly had. [They claim a synod ecumenical]: [1.] from the presence of a legate of the Apostolic See and of the other four patriarchates; [2.] from the  placet   of the most high Pontiff in order that a general synod be constituted on the part of the Oriental Church; [3.] from the fullness of power (  plenitudo potestatis ), which is granted to a legate and those in his party (…) [4.] from the general consent from both parts of the Church ( ex generali consensu utriusque ecclesie ). 17  Once the Greeks rejected Conciliarist plans, they traveled to pro-papal Ferrara, where Markos  praised the objective value of ecumenical dialogue between the Roman Church and Orthodox Church during opening sessions at Ferrara. There, Markos wrote the following to his sometimes feisty Latin interlocutors: O most revered  periti and Fathers, with regard to all disagreement that we discuss concerning one another’s positions, if this were alone the goal ahead of us and nothing else, then we would make arguments to win at any cost, but neither would we argue usefully, nor indeed justly (…) But nothing is the goal other than embracing the resplendent truth (…) 18  However many the controversies on dogmas that are yet bereft of investigation and inquiry, and while the positions on each side possess powerful and robust explanations, it is nonetheless quite profitable [for all] that someone is also found superior in the discussion, provided there is no contentiousness. Yet, then, we look together to the truth. Let us also be not zealous to win at all times, but it is for us to be bested and comport ourselves well. Now, indeed, it is a fact that this happens so not only on our part, for we 12  Joseph G ILL ,   “The Sincerity of Bessarion the Unionist”, The Journal of Theological Studies  26 (1975) 377–378. More recently, Bessarion’s role in John VIII’s theological investigation before the Council has  been well argued in: Jaqueline M ARTIN , Cardinal Bessarion, Mystical Theology and Spiritual Union between East and West  , Mantitoba 2000, 88–89. 13  S YROPOULOS ,  Les “Mémoires” , 170; M ONFASANI , “The Pro-Latin Apologetics”, 165–168. 14   Quae supersunt Actorum Graecorum Concilii Florentini , Joseph G ILL  (ed.), Concilium Florentinum Documenta et Scriptores: Series B, Rome 1953, vol. 5, fasc. 1, 91. 15  See Nicholas C ONSTAS , “Mark Eugenikos”, in  La théologie byzantine et sa tradition , Carmello C ONTICELLO  and Vassa C ONTICELLO  (eds.), Turnhout 2002, vol. 1, 416. 16  See S YROPOULOS ,  Les “Mémoires” , 178–180. 17  John R  AGUSA ,  De modo quo Greci fuerant reducendi ad ecclesiam per concilium Basiliense , in Concilium Basiliense , Johannes H ALLER   (ed.), Studien und Quellen zur Geschichte des Konzils von Basel, Basel 1896, vol. 1, 353–354. 18  Markos E UGENIKOS ,  Responsi graecorum ad positionem latinorum de igne purgatorio a Bessarione nicaeno recitata die 14 Iunii 1438 , in  De purgatorio disputationes in Concilio Florentino habitae , Louis Petit and Georg H OFMANN  (ed.), Concilium Florentinum Documenta et Scriptores: Series A, Rome 1969, vol. 8, fasc. 2,   13.  © Christiaan Kappes 2017 © Christiaan Kappes 2017 & all turn toward what is base and fall far in our digression from true wisdom, but this happened to the very apostles themselves –for whom Jesus is Lord– so do we both hear and believe to have occurred. 19   2. Markos’s Opinions on the Papacy and the Patriarchates Markos refrained from formal cooperation with Conciliarists at Ferrara-Florence. Generally, such Latins were against any notion of universal primacy, stemming from the Councils of Constance (1414) and Basel (1431–1438). 20  A number of the Basilean Fathers came to Ferrara  because of papal transference in 1438. Latin Conciliarism, after Constance, often denied the essential role of the pope to approve acts and decrees of ecumenical councils. 21  Likewise, The emperor knew about Basilean Conciliarism from his representatives at its sessions (until May 20, 1437). 22  As such, Greeks were in the company of Conciliarists at Ferrara-Florence. 23  Additionally, Markos kept abreast of divisions among Latins leading to an eventual election of an anti-pope during the continuation of the Council of Florence. 24  For his part, Markos was anxious to preserve the traditional order ( '()*+ ) of the five patriarchs and the canonical notion an ecumenical council canonized in the  Acta of Nicaea II. For Markos, the external sign of communion with the Church of Christ was holding communion with the “four Orthodox  patriarchs” of the pentarchy. 25  Following the rule of St. Theodore the Studite, if one of the five  patriarchs were to fall away, Orthodoxy would always be found with the other four. 26  For his part, 19  Markos E UGENIKOS , Sapientissimi ac doctissimi archiepiscopi Ephesii domni Marci Eugenici altera ad latinos responsio, in qua veram ecclesiae graecae doctrinam exponit  , in  De purgatorio disputationes in Concilio Florentino habitae , Louis Petit and Georg H OFMANN  (ed.), Concilium Florentinum Documenta et Scriptores: Seris A, Rome 1969, vol. 8, fasc. 2,   60. 20  The lion’s share of Thomists were papalists, though Dominicans were also Conciliarists at Basel-Ferrara-Florence. See Thomas P RÜGL , “Dominicans and Thomism at the Council of Basel (1431–1439)”,  Annuarium Historiarum Conciliorum 35 (2003) 361, 364, 367–368. Dominican theology played was utilized in theological disputes among the rebellious Council of Basel Fathers. For Dominican opposition to the papacy at Basel, see Juan T ERRAZAS ,  La eclesiología de Juan de Ragusa, O.P. (1390/95-1443) , Madrid 1995, 22. The Dominican John Ragusa’s Tractatus de Ecclesia may be dated to Basel (c. 1440). 21  An excellent presentation of the ecclesiologies that sprung from the decree of the Council of Constance (  Haec Sancta ) may be consulted in Michiel D ECALUWE , “Three Ways to Read the Constance Decree  Haec  sancta (1415): Francis Zabarella, Jean Gerson, and the Traditional Papal View of General Councils”, in The Church, the Councils, and Reform: the Legacy of the Fifteenth Century , Gerald C HRISTIANSON , Thomas I ZBICKI , and Christopher B ELLITTO  (eds.), Washington DC 2008, 122–139. 22  Three imperial emissaries were Latin speakers among the diplomatic team at Basel: brothers John and Manuel Dishypatus, and Manuel Boullotes. See G ILL , The Council of Florence , 54–60, 72–75, 78–79. 23    Acta Slavica Concilii Florentini:    Narrationes et documenta , ed. Johannes K  RAJCAR  , Concilium Florentinum Documenta et Scriptores, Rome 1976, vol. 11, 33. The Ruthenians and Russians present at the Council were aware of the fight between Conciliarists and papalists. The Latin spokesmen, Andrew Chrysoberges, OP, read the public excommunication of Conciliarists in the presence of Greek and Slav contingents at Florence. 24  Markos E UGENIKOS , Omnibus ubique terrarum degentibus et insulas habitantibus christianis orthodoxis,  Marcus Ephesiorum metropolita salutem in domino , in  Marci Eugenici Metropolitae Ephesi opera anti-unionistica , Georg H OFFMAN , Manuel C ANDAL , et al (eds.), Concilium Florentinum Documenta et Scriptores: Series A, Rome 1977, vol. 10, fasc. 1, 150. 25  E UGENIKOS  , Omnibus , 145. 26  Theodore S TUDITE ,  Epistle   418 , in Theodori Studitae Epistulae , Georgios F ATOUROS  (ed.), Corpus Fontium Historiae Byzantinae: Series Berolinensis 31, Berlin 1992, vol. 2, 586. Cf. George-Gennadios S CHOLARIOS ,  Brève Apologie des antiunionistes , in Oeuvres Complètes de Georges Scholarios , Louis
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