The legal capacity of the Church is defined by the possibility for an Orthodox Christian to take part in the Eucharist. Respectively, the punishment measure for church crimes depends on extent of the loss of such legal capacity - excommunication can be temporary, lifelong, or full (anathema).

Laying aside the question of the consequences in loss of church legal capacity for the participation in other church sacraments, we will pay attention to a sacrament of the anointing of the sick as an example of a procedure to restore church legal rights.

According to some Russian liturgists the anointing of the sick was precisely the way for the church’s reconciliation with people, whose ban on the Holy Communion was extended to their hour of death. “It is possible to think”, the professor A. Katansky writes “that in the first centuries of Christianity for some of the sinners, who have to repent their entire life and only at deaths door are awarded an absolution of sins, precisely the sacrament of an anointment replaced in certain cases the absolution of sins, usually given during the sacrament of repentance”.

The Church’s interpretation of the New Testament text (Ja. 5:14-15) specifically emphasizes the penitential nature of the sacrament of anointment. However, the most apparent sign of reconciliation with the Church is not the consecrated anointment as such, but the priest laying his hands onto the head of the patient. If the act of anointing of sick is an evident sign of healing the diseases, the laying of hands is the sign of absolution.

Thereby both moments of the office of one sacrament – healing and repentance – were expressed through unction by anointing the sick and laying on of hands. Such a situation creates two issues from the canonical point of view:

1.The connection of Holy Anointing with the Eucharist and the right to participate in it.

2. The right of participation in the sacrament of the Holy Anointing in connection with the general church legal capacity.

Concerning the first question, it is probably necessary to refer to the practice of the Armenian Christians (based on Early Christianity) and the syro-jacobites, who precede the Holy Communion by the anointment. Moreover, the office of sacrament of repentance is replaced by the office of anointment before the Holy Communion in the Armenian Church.

The sacrament of an anointing of sick became an obligatory form of repentance for people who subjected themselves to public repentance. Only in the IX century it is possible to find the same office of anointment which the Church follows today. Because the penitential accent is not so obvious in this office, it is necessary to address the second issue mentioned above – about the restriction of the right of participation in the sacrament for Christians.

Such restriction should be understood in two senses: when there is no need for this person to start the sacrament and when such person is not directly allowed to participate in it owing to a restriction of the church legal capacity.

1. Lack of need to participate in the sacrament

In the practice of the Russian Orthodox Church some categories of people were not allowed to participate in the sacrament of Holy Anointing.

1) In the practice of the Synod era children were not allowed to participate in the sacrament of anointment. The reason for this was that children up to the age of seven did not confess. As the sacrament delivers not only the healing of diseases, but also absolution, children did not participate in the anointment service, as they did not have an experience of confession. Now there is no such strict ban, but if this aspect of the sacrament is to be taken into consideration then the participation of children up to the age of seven seems unjustified.

2) Unconscious patients are also considered to be those who can be denied anointing. However, modern practice agrees in this question with one by the Synod, when the anointment is allowed in case “the patient expressed the desire to accept the sacrament earlier if not by word, but by any sign – the movement of hands or eyes showing the deep contrition and repentance of sins”.

3) The issue regarding the delivery of the sacrament to apparently healthy people is more difficult. The ban on such delivery was so strict that the anointment was not given even to people condemned to death, going off to war or on a dangerous journey. On the other hand, during the Synod period there was a custom of giving anointing to parishioners on Maundy Thursday or Holy Saturday. However, some liturgists considered such unction (even performed according to the proper office of anointing) simply as a custom, but not as a sacrament.

2. The impossibility of the participation in a sacrament.

Actually this ban arises only in one unique case – when repentance is impossible from a person who bears a canonical punishment in the form of a lifelong excommunication from the Eucharist. In all other cases the sacrament of an anointing of sick is a necessary form of reconciliation with the Church for all repenting heretics and Christians who were under a ban. Thus the connection of such a canonical aspect with the “medical” one occurs through the moment of its delivery: before death. For descriptive reasons we will address the canonical examples.

The 13th rule of the 1st Ecumenical Council refers to “the old and canon Law”, confirming its regulations that, “anyone on the deathbed is not deprived of the final and most necessary parting words. If, however, after all hope has fled, and he has been given communion, he again comes to be looked upon as being among the living, let him stay with those who participate in prayer only. In general, if any dying person, whoever it may be, asks to receive Holy Communion, let the Bishop impart to him the Oblation with a trial”.

Saint Gregory of Nyssa writes in his 5th rule in more detail about the origins of this custom which has become now a canonical norm, referring to the  “philanthropy of the Fathers” and on this basis introducing the general principle “so that if the reversion obtains the appearance of plausible credibility, the number of years should not be maintained unabated, but for the sake of commutation the penitent should be restored to the Church and to the right to partake of the essence of the great boon involved in the Mystery of the Sanctification of the Holy Elements”.

Proceeding from this, it is possible to establish that in the canonical theory the Communion of the faithful person at the Liturgy is a possibility which is only restricted if this person is under a penance, and in this case the confession before the Communion should be considered as the testimony of absence of such a restriction. Therefore, according to the Synod practice of the Russian Orthodox Church, confession precedes the Holy Anointing and the subsequent Holy Communion.

The 5th rule of St. Basil the Great states the following: “The heretics who repent at the end of their life must be admitted. They are to be admitted not indiscriminately, but by testing whether they have exhibited any proof of their decision to repent and whether they have borne any fruit in witness of their anxiety to be saved”.

The 73rd rule confirms: “Whoever has denied Christ and has violated the Mystery of salvation ought to weep throughout the rest of his life, and he owes the obligation as a debt to acknowledge and to confess the fact at the time when he is about to part with his life, when he shall be deemed to deserve the right to partake of the Holy Elements, by faith in the kindness bestowed upon human beings by God”.

In his rules St. Basil the Great repeatedly comes back to this subject (сompare St. Basil 3, 75, 81 and 84). Saint Gregory of Nyssa specifies that the confessor “ought to examine and try to discover in what part of the soul the disease consisted, in order he may know what treatment is best fitted to this case, lest owing to inexperience in the therapeutic method he apply the remedy to a different part than that which is diseased, as, in fact, we see many physicians who lack experience only cause suffering and irritate the disease by making it worse with the remedial agents they are applying.” (Gr. Nyss, 1).

The second rule of the same prelate gives an example of similar doctoring, emphasizing that “all sins that are attached to the mental faculty of the soul have been judged more harshly by the Fathers, and meriting greater, longer and more painfully laborious efforts to return” (Gr. Nyss., 2). The abovementioned also relates to people who renounce their belief in Christ, but then repent and stay in such repentance “all the time of the life” (similarly: Ap. 62; 1 Nic. 10. 11, 12 and 14; 6 Ecum. 102; Ankir. 109 and 21; Laod. 2; Karf. 52; Gregory Nyss. 2 and 11; Peter Alex. 2 and 3; Gregory Nyss. 3).

Russian theological science of the Synod period did not see any canonical problems in connection with the sacrament of the anointing of the sick: “With regard to the anointing sacrament we do not find any canonical resolutions; the absence of such resolutions could be explained by the fact that at delivery of this sacrament there were no issues or queries demanding canonical permission”.

 Nevertheless, it is possible to point to a dispensation problem in its connection to the sacrament discussed here. The seventh rule of the Council of Carthage says: “If anybody is in danger and demands the reconciliation with the sacred altar when the Bishop is absent, the Priest should formally ask the Bishop, and then allow the one in danger to have reconciliation, in accordance with the Bishop’s orders”.

At the same time, the civil legislation of Byzantium (see Nomocan., IX, 39) also refers to a problem of dispensation regarding the term of the penance and the definition of a person who has right to establish the penance term. The legislation of the Holy Emperor Justinian (Cod. I, 7, 3) deprived of repentance the members of the Church who were lost in heresy.

Another contradiction of the Church regulations to the laws of the State recognises that the standard of the Roman law meant the strict separation of the judge who determines the punishment and the executor. In application to the execution of the penance it gave rise to a collision of standards of the Roman law and canons regarding of the ownership of the right to issue the indulgence. According to the Digest it is possible to change measure of punishment by the person in charge – however only after a special order from an Emperor (by XLII, 1, 45).

Naturally such order is not required for the authorized clergyman with regard to the penance of the repentant.

According to the 102nd rule of the Quinsext Council the above-mentioned principle is confirmed by the criteria – which a clergyman should follow while considering the reconciliation of the repentant. The clergymen receiving the repentant, “must take into consideration the quality of the sin, and the willingness and readiness of the sinner to return, and thus offer a treatment suited to the sin in question, lest by employing an immoderate adjustment in one direction or the other, they fail in compassing the salvation of the one ailing. For the diseases called sin are not simple affairs, but, on the contrary, various and complex, and they produce many offshoots of the injury, as a result whereof the evil becomes widely diffused, and it progresses until it is checked by the power of the one treating it”.

As an explanation of the motivation for such an approach the fathers of the Quinisext council directly refer to St. Basil: “For all that matters to God and to the person undertaking pastoral leadership consists in the recovery of the straying sheep, and in healing the one wounded by the serpent. Accordingly, he ought not to drive the patient to the verge of despair, nor give him rein to dissoluteness and contempt of life, but, on the contrary, in at least one way at any rate, either by resorting to extremer and stringent remedies, or to gentler and milder ones, to curb the disease, and to put up a fight to heal the ulcer for the one tasting the fruits of repentance, and wisely helping him on the way to the splendid rehabilitation to which the man is being invited. We must therefore be versed in both, i.e., both the requirements of accuracy and the requirements of custom. In the case of those who are obstinately opposed to extremities, we must follow the formula handed down to us, just as sacred Basil teaches us outright” (similarly teaches us: 1 Ecum. 12; Ankir. 2, 5 and 7; Athanasius. The message to Rufinian; Gregory Nyss. 4, 5, 6 and 7).

Finally, we will dare to draw some practical conclusions:

1. The canonical aspect of the sacrament of “Holy Anointing” is traditionally linked with the aspect of reconciliation with the Church for people executing lifelong penance and only before their death restoring the church legal capacity.

2. Now, when the lifelong penance became rather an exception than the practice – it is possible to accept a certain category of the repentant person into the church communion mainly through Holy Anointing.

3. First and foremost the Diocesan Bishop has the right to receive such a repentant person. However (with his blessing) the priests appointed by the Bishop can carry out the sacrament itself.

4. The recognition of Holy Anointing as a form of repentance will help to solve the practical problems linked with this sacrament and will define its place in the canonical consciousness of the Church.