Jurisdiction Over Marriage in the Romanian Principalities: From the Ecclesiastical Court to the Secular Tribunal
Alexandru I. Cuza University of Iasi
May 10, 2008
TURNING POINTS AND BREAKLINES: YEARBOOK OF YOUNG LEGAL HISTORY 4, Szabolcs Hornyak, Botond Juhasz, Krisztina Korsosne Delacasse, Zsuzsanna Peres,eds., pp.180-192, Martin Meidenbauer, Munchen, 2009
In the Romanian principalities, Wallachia and Moldavia, the dominant religion was the Christian Orthodox faith. According to the Byzantine tradition, between the Orthodox Church and the Prince there was a strong alliance and the Metropolitan Bishop was the second important man in the state after the ruler.
The Orthodox Church brought in Wallachia and in Moldavia the first written laws. They were Byzantine nomocanons ( that is collections of Canon law and Secular law) that arrived from Constantinople through the medium of the South Slavs. In the 17-th century, the Orthodox Church in Moldavia and in Wallachia translated into Romanian language these nomocanons and combined them creatively into the first Romanian written laws.
Therefore, the Orthodox Church had in both principalities, an extensive jurisdiction over clerics and laics. The ecclesiastical courts were: the bishops and the Metropolitan Bishop ( when he judged he was assisted by other clerks and all this assembly was named dicasteria or the Tribunal of the Metropolitanate).
Because marriage is one of the seven mysteries of the Christian Church (Catholic or Orthodox), the Tribunal of the Metropolitanate was the only court in Moldavia and Wallachia which could rule over matrimonial litigations. This position is certified by documents of the 18-th century and by the law codifications from the first half of the 19-th century. The other bishops restrained themselves from deciding in matrimonial litigations. They made only the judicial investigation and sometimes they suggested a solution. However, only the Metropolitan Bishop with his tribunal decided in such cases with the approval of the Prince, who was the supreme judge.
The Constitutional Regulations of Wallachia and The Constitutional Regulations of Moldavia ( both enforced under Russian occupation in 1831, respectively 1832) tried to separate the jurisdictional power from the executive one and in Article 240 ( 298 for Moldavia) provided that the Metropolitan bishop and the other bishops had jurisdiction only over ecclesiastical and spiritual matters. According to Article 7 of the Constitutional Convention of the United Principalities ( Paris, 1858), the judicial power had to be entrusted by the Prince to magistrates (whose appointment and promotion had to be regulated by a special law based on the gradual enforcement of the immovability principle).
But the clerical jurisdiction over marriage survived. Thus, the Law for the establishment of the Court of Cassation and Justice of January 12, 1861 provided in Art. 2 that the clerical courts which in fact had some attributions in matrimonial matters were subjected to the jurisdiction of the Court of Cassation and Justice, as well as all the tribunals and courts of appeal from the United Principalities of Moldavia and Wallachia.
The clerical tribunals lost their jurisdiction over matrimonial litigations only through the Law for the judicial organization of April 11, 1864. The clerical tribunals were not enumerated in Article 3 among the courts that served justice in Romania ( the new name taken in 1862 by the United Principalities). Thus, the Orthodox Church lost completely its civil and criminal jurisdiction over Romanian citizens. The Orthodox Church kept only the disciplinary jurisdiction over clergy.
Number of Pages in PDF File: 13
Keywords: Jurisdiction over marriage, Moldavia, Walachia,ecclesiastical courts, secularization of law, Romania, church and state
JEL Classification: K10, K19, K30, K39, K40, K41Accepted Paper Series
Date posted: February 25, 2010
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