Statement from St. Nicodemos is a true one:
"Canons are dead letters that only have life and force when applied by a living Synod representing the mind of the Church. St. Nicodemos states this quite clearly."
Since you proceed in your message to ask about the context and applicability of this statement which is found in a footnote of the Rudder, here is a more complete quotation:
"We must know that the penalties provided by the canons, such as deposition, excommunication, and anathematization, are imposed in the third person according to grammatical usage, there being no imperative available. In such cases in order to express a command, the second person would be necessary. I will explain the matter better. The canons command the council of living bishops to depose the priests, or to excommunicate them, or to anathematize laymen who violate the canons. Yet, if the council does not actually effect the deposition of the priests, or the excommunication, or the anathematization of the laymen, they are neither actually deposed, nor excommunicated, nor anathematized.
"They are, however, liable to stand judicial trial – here, with regard to deposition, excommunication, and anathematization, but there with regard to divine vengeance. Just as when a king commands his slave to whip another who did something that offended him, if the slave in question fails to execute the kingʹs command, he will nevertheless be liable to trial for the whipping.
"So, those silly men make a great mistake who say that at the present time all those in holy orders who have been ordained contrary to the canons are actually deposed from office. It is an inquisitional tongue that foolishly twaddles thus without understanding that the command of the canons, without the practical activity of the second person, or, more plainly speaking, of the council, remains unexecuted, since it does not act of itself and by itself immediately and before judgment.
"The Apostles themselves explain themselves in their c. XLVI unmistakenly, since they do not say that any bishop or presbyter who accepts a baptism performed by heretics is already and at once deposed, but rather they command that he be deposed, or, at any rate, that he stand trial, and if it be proven that he did so, then `we command that he be stripped of holy orders,' they say, `by your decision.'
Let us understand it a bit better though, in relation to the calendar change question, to which you are applying it.
1) When all the local churches have either adopted the new calendar or have accepted those who have adopted it, can they validly convene in a synod and decide whether the adoption of the new calendar violated prior Church rulings?
Can those implicated in an alleged crime be the judges of themselves and of whether their action was indeed a crime?
Who will comprise that living Synod which will apply the Canons, in connection with the calendar change, so that they may not remain dead letters without life and force?
Let us see how this statement can be put into action, please.
Hopefully the quote above adds clarity to the subject. Past anathemas must be executed or applied by a living Synod for them to have force. Some on this list have ridiculed this position by suggesting that a new Council must therefore convene every so often to anathematize Nestorianism or Monophysitism or else those who are currently Nestorians or Monophysites should be considered within the Church. Such is the reasoning of fools, blind in their understanding, full of darkness and ignorance. What it means is if a bishop who is part of the Orthodox Church starts to teach Nestorian or Monophysite heresy, he does not become ***automatically*** anathematized and deposed, but rather a Council or Synod must convene to address the matter and determine if the bishop is really a heretic who is persistent in his heresy and must be removed from the ranks of bishops, or whether the bishop was falsely accused, or whether the bishop taught falsely out of ignorance but is more than willing to repent and correct his teaching after being confronted with the allegations.
Now, how does this apply to the calendar change? There are many issues to consider. You suggest that a Council cannot be expected to judge the matter of the calendar change since all the local churches either adopted it or have accepted those who have adopted it (and have therefore accepted the change without accepting the change). I think there is a major false assumption here, that just because one bishop doesn't break communion with another, or one local church doesn't break communion with another, this implies that there is complete agreement and oneness of mind. Communion should be a seal of unity and a validation and expression of unity in faith, yet there can be major disagreements where the parties involved simply see the disagreements as not significant enough to justify breaking communion, regardless of how seemingly great the disagreement. In other words, the Jerusalem, Serbian, and Moscow Patriarchates may completely disagree with the adoption of the New Calendar by other local churches, but see the issue as not dogmatic and therefore not a sufficient basis for breaking communion. In the Pre-Conciliar discussions between the local churches which comprise World Orthodoxy, the calendar is one of the issues that continue to be brought up for discussion and resolution. Those on the new and old calendars both consider it a great problem that not all Orthodox celebrate the feasts on the same day, and so I certainly think that a Council could be called comprised of the heads of the local Orthodox Churches to decide on the matter of the calendar and either apply the 16th century canons or not. That being said, I do think you are right that a council comprised solely of churches that have adopted the New Calendar, without participation of the local churches who are still on the Old Calendar, could not be considered a valid council in the sense of representing the mind of the Church or having the authority to make a binding decision for the whole Church.
As far as the other issues that would have to be addressed in a council regarding the calendar change, there is the fact that the New Calendar does actually differ from the Papal Calendar, the difference is just so small that the dates of the two calendars for the Menalogion happen to line up at present. Then, there is the issue of whether the calendar change was or was not connected to Papism or Ecumenism as is popularly stated to support the Old Calendarist position today. Of course, one can use the 1920 Encyclical of the EP to make this case, and the opening words of Patriarch Meletios in the 1923 "Pan-Orthodox" Congress, but in the deliberations of the Congress itself, and the discussions among the few attending this "congress," I do not recall references to Ecumenism or uniting with heterodox. Greece was the first to adopt the New Calendar, of course, and at that time the desire to align the Church Calendar with the Gregorian Calendar, which had recently been adopted as the civil calendar in Greece, was a major consideration. Unfortunately, the 16th century anathemas are not even referenced in the proceedings of the "Pan-Orthodox Congress." If there was a future Council to resolve this issue, the 16th century canons, their context and purpose, would need to be thoroughly analyzed, whether they are applicable to the sole adoption of the New Menologion or whether they only apply if the Paschalian is changed also; as well as the reasons and conditions under which the New Calendar was adopted, the problems that have resulted from changing the calendar, etc.
In other words, I do think the local churches who have either adopted the New Calendar, or have remained in communion with those who have adopted the New Calendar, both see the difference in calendars as a very great problem that needs to be addressed, and these churches could competently hold a Synod to resolve the matter, though a common decision for everyone to adopt the Old Calendar seems to me to be the only solution. If some local churches defiantly insist that they will by no means adopt the Old Calendar despite the consensus, then the Council will have to determine how to appropriately discipline this part of the Church and whether the past anathemas are applicable.
Those of the Greek Old Calendarists who are aware of these very important words of St. Nikodemos assert that, when the three bishops (Germanos of Demetrias, Chrysostom of Florina, and Germanos of the Cyclades Islands) came together in 1935 to lead the Old Calendarists, and issued a statement saying that the grace of the Holy Spirit had departed from the mysteries of the State Church of Greece on account of the calendar change, these three bishops constituted a valid local council. If this were the case, we could say that only the State Church of Greece is without grace by virtue of the decision of this local council, whereas to my knowledge this has not been declared regarding any other local Church who has adopted the New Calendar (though in reality the Old Calendarists believe that all the New Calendar churches are without grace by virtue of adopting the New Calendar, regardless of whether a "living Synod" has said so). One does have to ask, though, whether three bishops can constitute such a "living Synod," and what the implications of the fact that none of the local churches who follow the Old Calendar accept this position. Old Calendarists justify this 1935 Statement's reference to the departure of the grace of the Holy Spirit by saying that the State Church of Greece told them first that they had no grace in their mysteries. Apart from the childishness of this scenario, which should be a source of embarrassment rather than respect, when Met Chrysostom of Florina was sent to Jerusalem to develop relations with another Old Calendar church, it is significant that Chrysostom was received as a monk and not a bishop. In other words, Jerusalem considered the decision of the State Church of Greece to be valid and not the 1935 "council."
This principle is also of great importance for ROCOR's 1983 Anathema Against Ecumenism. Here we have a general anathema that has not yet been applied by a living Synod to actual individuals or local churches. Nevertheless, people who have left ROCOR before and after 1983, and wish to justify their departure, claim that this anathema took on a life of its own and automatically anathematized everyone who is a member church of the WCC. As the false reasoning goes, from "silly men" as St. Nikodemos states, ROCOR too has been anathematized by being in communion with the MP and by remaining all these years in communion with Jerusalem and Serbia.
2) Does St. Nicodemos state this in relation to a church's falling into heresy and/or schism or does he state it in relation to a person's committing a punishable sin that would call for their defrocking or excommunication?
Does St. Nicodemos state this in relation to a church falling from Grace or in relation to a church member falling from his rank?
The words of St. Nikodemos quoted above seem all-encompassing to me, applicable both to local churches falling into heresy and individuals committing a canonical offense. He states that a living Synod must apply general anathemas, excommunications, etc. to actual members of the Church in our own time for them to "take effect."
If not mistaken, this statement comes in the 1st footnote to the 3rd Apostolic Canon.
This canon concerns the individual cleric who brings to the sacrifice milk or honey as gifts rather than what is prescribed by the Church.
St. Nicodemos makes first a few grammatical clarifications as to the use of the term "let him be defrocked" and then gives examples of where defrocking is called for, mentioning in particular the case of persons who have been ordained in a way that breaks the Church rulings.
It would seem risky and unwarranted to generalize a statement made in connection to particular individuals punished within the Church, as if it applied to the status of local churches in relation to Grace.
(Again, I think) It is clear that St. Nikodemos' words do not just apply to the matter of an individual who has violated a single canon.
(written by Jason)