Posted August 11, 2013 by advocateguru in Articles


Is Canon Law a basis of Common Law?

In primitive ages, there was not written and any hard or fast rules,

regulations, statutes, code or law. People live their lives according to moral values and usages.

In the beginning, the ancient Christians follow Moses 10 commandments, which the scribes

and Pharisees divided into many small, small rules, about 603 laws. Everyone has to obey these

rules. Later on, when the Jesus Christ came, He made one law by combining all of these 603

laws. In addition, that law based on moral and ethical value and rights of citizens/people. After

the Crucification of Jesus Christ, the Christian communities had very tough time. Those who

follow Jesus confiscated and killed by the King.

At that time, Christian communities lived without any comprehensive body of written law for

more than 5 centuries. They live in Chaos, have bad moral values, and believe on magic and

worship idols. Early in the beginning of 4

Codex” as a guide to make laws for Christian community. Canon Law in simple words, a

Christian Law who has its origin in Old & New Testaments, Canonical Collection, Jurists

Writings, Usages, Precedents & a rich collection of Church Fathers (1200 Chapters in allRoman & Law).Jurists arrived in 12

development of Canon Law.

Gratian has known as “Father of Canon Law”. Some other Jurists; Gaul, Charles the Great,

Photios, Auders Winroth (1996), who had made their contributions in the field of Canon Law.

They introduced “Decretum Law”, based on Natural Law and Usage; used in many of Law

schools of Europe in next 5 years. Constantine, for the very first time introduced in Canon

Law, a council who issued 25 canons that dealt with adultery, murder, magic, etc. In early

ages, Canon Law divided into two parts; Conciliar Canons & Papal Decretals (Decision

on discipline).In Byzantine, Canon Law, not too much developed but later on, Canon Law

established Ecclesitical Courts, which began to render judgments based on written and oral


Evidences were tempered, forged & misused because there was no proper judicial procedure

regarding it. Therefore, the judges, litigants & jurists began to worry about correct judicial

procedure. In 12




& 15

century , called the “Age of Concilia”. Until 14


& 15

developed & jurists were keeping working on two questions regarding Canon Law, that is:

ÿ How legal system should be structure?

ÿ What should be the procedure regarding marriage & government structure?

After a long struggle by jurists, they provided a proper procedure & law. According to it,

the Pope is above Positive Law, not Natural law. Summons had established by Natural Law;

the Pope could not omit it. No just decision made unless the defendant was present in court.

Moreover, in notorious crime, the judge may proceed in a summary fashion but summons &

judgments must observe. The basis of Canon Law is Scripture and 10 Commandments so the

rule regarding summons & judgment taken from Scripture; that in Adam & Eve case; proved that

both were necessary, summons & judgment. If God has bound to summon Adam, human judges

must do the same.


century, the Roman State introduced “Justinian


Century & they had played a vital & significant role in the


Century, however, Theodore Balsman introduced some reforms. Later on, in

century, a lot of work and reforms introduced in Conciliar Canon, for that the 14


century, the Canon Law was not fully

In the beginning, in Canon Law, defendant has no right regarding due process of law, a judge

or Prince condemn without trial. Later on, with the passage of time, Canon Law developed &

provided some rights to defendant:

ÿ Right to trial & due process with a sentence, “a person is presumed innocent until proven

guilty”. It is based on Maxim; “Ius Commune”, means “Innocent until proven guilty”,

summarized a bundle of rights that every human being regardless of person’s status,

religion or citizenship should have.

ÿ It provides some absolute rights to defendant as to summoned, to have their case heard

in an open court, to have legal counsel, to have their sentence pronounced publicly & to

present evidence in their defense.

Moreover, before 13

developed& Jurists started to distinguish between offensive & defensive weapons, dangerous

& save places, cleric’s & a layman’s right to defend himself & take up arms to defend their

homeland. They also provide rules regarding war, trade & commerce. Natural reasons permits

people to defend themselves from danger, give right of self-defense. After a hard struggle made

by Jurists to develop a Canon Law, it was necessary that every church accept it. Nevertheless,

Protestant Church rejected the body of Canon Law.

However, Anglican Church preserved the entire body of Canon Law & converted into National

Legal Law. On the other hand, The Swiss Reformed Church established Ecclesiastical

regulations that were influential in other Protestant countries. In middle ages, Canon Law

remained an independent Legal System included local laws. Splendid example is the origin of

right to due process of law. It is a paradoxical, a legal system that battled to be separate itself

from the secular state during the middle ages (unlike Byzantine Canon Law) in the end, had a

profound influence on all modern secular European Legal System.

The Common Law based on customs and precedents. Therefore, Common Law, especially the

Maxims of Law of Equity is, as a whole, based on Canon Law. When Canon Law gradually

developed throughout the ages, in Modern times, it transformed & become a Common Law, to

meet the needs & circumstances of modern time. It provides the substantive & procedural law

both. One of the most lasting contributions of Canonists to Constitutional thought is this; it

provides a fundamental principle of Democratic Government, which based on the doctrine of

consent on Maxim;


century, it is an offence to bear an Arm but gradually Canon Law

“What touches all must be approved by all”.