Tuesday, 6 January 2009

The Orthodox Monk and the Law

We would like briefly to review the position of the Orthodox monk—any Orthodox monk—and the law.

Here we are interested in the Orthodox monk and the secular law. We assume for the sake of discussion that the Orthodox monk has no issues with his Orthodox ecclesiastical identity, for example with his status under Orthodox canon law.

Every Orthodox monk is somewhere. He is physically located somewhere. That somewhere has various laws.

Is the Orthodox monk above these laws?

He may think so. His abbot might think so.

The policeman might not think so. The judge might not think so. The local medical association might not think so. The various agencies of the government might not think so. The tax collector certainly will not think so. The lawyer for the other aggrieved party might know that the Orthodox monk is not above the law and might happily run up his fees as he prepares to file papers against the Orthodox monk and his monastery asking for damages and costs in the local court.

What is the situation?

This post was prompted by a comment on Sarah Palin 3 which went in part like this:

Wow. Lot's of big words and legal stipulations in the guise of being a thoughtful orthodox Christian. You should have been a lawyer. …

We have the impression that these words were directed towards our caveats in our posts to young Theodor, a Romanian who contacted us under the pseudonym Yahnony Mouse. Well the curious thing is, Rolandtione, Theodor the Romanian reappeared with a new pseudonym just at the time you made your comment. In fact he has newly trolled us under a variety of pseudonyms. He quoted Kierkegaard. We are proud to be a blogger trolled by people quoting Kierkegaard: we have a very tony blog.

But more seriously the upshot is that we have two problems: what to do about Theodor and what about the Orthodox monk and the law?

We would like to explain about all our big words and legal stipulations in small words that even Rolandtione can understand. Theodor understands the big words, as is evidenced by his reading Kierkegaard.

The Orthodox monk is not above the law.

He must obey the criminal laws of his country and local jurisdiction. He might think that the criminal laws are wrong but if he chooses to break them, he is going to pay the price prescribed by law—even the law of God. We all know the scandals that have ensued when someone has put on the habit and then done whatever he felt like— perhaps ending in suicide, perhaps ending in the penitentiary. If you can’t pay the time, then don’t do the crime. It also might be serious sin. The human criminal law is not necessarily the same as the law of God but there obviously is considerable overlap in Judæo-Christian cultures.

In this regard, it might be pointed out that obedience is not a defence against a criminal action: ‘I cooked the books out of obedience, Your Honour,’ is not going to cut it in a human court.

Next, suppose that someone comes to the Orthodox monk’s monastery as a visitor and slips and falls. Breaks his ankle. The Orthodox monk is now about to find out about the law of negligence. It might be an expensive lesson.

Next, suppose that we, ‘Orthodox Monk’ counsel Theodor, whom we have never met and with whom we have only have had contact over the Internet, what to do. We might be wrong. Theodor might, however, listen to us. Let’s suppose he does. Let’s suppose he gets into serious trouble listening to us, perhaps even because he really didn’t understand what we said. So what? ‘Orthodox Monk’ shot his mouth off over the Internet. Everybody does it. Theodor should have listened to his father and mother.

It’s not that simple. ‘Orthodox Monk’ can find himself on the receiving end of a lawsuit. He might even be exposed to a criminal action for practising medicine without a license. Now Rolandtione might think that these things are trivial—after all talk is cheap on the Internet—but Orthodox Monk might not want legal and moral (Christian) responsibility for damaging Theodor. He might not want to go to jail for practising medicine without a license or to be liable for damages for what happens to Theodor when Theodor puts into practice what ‘Orthodox Monk’ says, as Theodor understands it.

But ‘Orthodox Monk’ is an anonymous blogger! How is anyone going to find him? “Elementary, my dear Watson, elementary.” He will be found.

That’s why we haven’t replied to your latest emails and comments, Melvin Udall, Liam Foreal and so on. We told you all we could way back when and we don’t know a thing. If you have problems, see a professional.

Let’s suppose that the Orthodox monk’s monastery runs a business. Then the monastery is going to be subject to the laws governing the running of businesses, from employment law to labour law to commercial law to tax law to the law of warranty. If the Orthodox monk is in charge of the monastery business, he is going to have to keep the records prescribed by law, both accounting records and others. He also can’t shoot his mouth off on the Internet or to visitors to the monastery about the products he is selling without regard to the law and the truth. It will catch up to him, either civilly or administratively (e.g. the FDA).

Let’s suppose that the Orthodox monk has a monastery located in a United States jurisdiction. He applies for and gets 501(c)3 non-profit status. But that brings with it obligations as to what the Orthodox monk’s monastery can and cannot do. It imposes certain requirements for record keeping. Similarly in other jurisdictions.

Next, let’s suppose that the Orthodox monk is an abbot and people come to him. They decide to become his monks or nuns. It behoves the abbot to know the relevant laws and to learn the facts about the postulant made relevant by those laws. Is the person of age? Is he legally competent? Is he a citizen? Does he have the legal right of residence? Does he have debts? Does he owe taxes? Is he married? What does his wife think? What about the children? Is he wanted for anything? Is he on parole? Is he the subject of any court orders? Is he subject to an obligation for military service? Does he have any health issues that might create a legal liability for the monastery? Does he habitually break the law in ways that are going to affect the monastery? And so on and so forth. Due diligence.

Let’s suppose that in a burst of enthusiasm the wealthy novice gives all his possessions to the poor abbot. Let’s suppose that the abbot accepts. After a few years, the ardour cools and the novice who has since become a rasophore leaves. What then? The Abbot says, ‘You gave your goods to God.’ The monk says, ‘Where’s my lawyer?’ and goes to court.

For precisely this reason, in his Rule the 6th Century saint, Benedict of Nursia, counsels the abbot not to accept estates from postulants—the matter ends up in court, ‘as we have learned from experience’.

It also seems clear that in the Rule of Benedict the profession had a legal element; it wasn’t merely a promise to God but a contract legally binding for life in the context of the legal world of St Benedict. The abbot today must learn just what status monastic vows have in the jurisdiction in which his monastery is located. He has to understand the laws that govern such matters in his jurisdiction. The law may forbid him to take the monk or nun’s estate, preserving untouchable the monk or nun’s right to private property. It might not recognize the legal validity of a vow—i.e. it might enshrine the right of the monk or nun to leave the monastery any time they want for any reason they want, even for no reason at all. The law might even create a right for the monk or nun to seek fair compensation once they leave for the work they have provided to the monastery—you never know about such things until you check the relevant laws. The law might require special articles of incorporation of the monastery for it to have a proper legal identity.

Next, an Orthodox monastery normally has a cemetery. That might not be a straightforward matter in the local jurisdiction. Before founding the monastery, the founder would want to find out how the local planning authorities look at such a matter. There are also laws concerning how people are to be buried. Various elaborate embalming methods might be prescribed by law.

Additionally, the monastery site, including the buildings on it that the founder finds, might be subject to all kinds of zoning or even archæological regulations. The founder has to find out.

Finally, let us suppose that the Orthodox monk still hasn’t figured out that he is subject to the human law. He goes off into the bush to a place where a saint once lived and sets up shop. He doesn’t bother about things like title to the land. The saint has appeared to him in a dream and called him.

So what happens? Someone comes around, sees the Orthodox monk deep in his devotions and calls the police. The police come. They have pistols slung on their hips. They say, ‘Sorry, the man to whom this land belongs has got an eviction order from the court and we’re obliged to evict you. Get your things together and get going.’ ‘But I had a vision that the saint called me here.’ ‘Get your things and get going before there’s trouble.’

In a few words, however spiritual you might be, don’t mess with the law. And however spiritual you are, it behoves you to find out which laws apply to you. If you’re really sensible and exposed—for example you have a large monastery—you will want to retain counsel to advise you in a continuing relationship as the monastery’s counsel. And we would also hazard the remark that obeying the law is also an aspect of Christian love.

1 comment:

  1. Really hope you will come back soon with more interesting and edifying stuff for us to read! Although I sometimes don't understand some of what you write, I love the way you write it (your gentle humour) and hope that you will be back soon. I pray for "Orthodox Monk" every morning.

    God bless you!

    Love in Christ,