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Comments, complaints, broken links, disappointed hopes - please contact the caretaker. 31/07/2009 |
Paul's Personal Pages [Paul's Personal Pages] [Contact Us] What has law got to offer the Church? (Modern Believing written November 2003; published Vol. 45:3, July 2004 pp. 7-14) Law, or some form of regulation, is essential to any organization. The imminent prospect of schism in the Anglican Communion has seen a turn to law as a vital component of the resolution of the present conflict. Canon law is said to reflect ecclesiology[1]. When, as now, the vision of the church is fractured, the law cannot provide a substitute nor stand above the fray. When the fog clears a little, however, it is highly probable that law will be a central theme in the ensuing debate on the future shape and character of Anglicanism. In part the turn to law is a timely achievement for a programme of analysis of Anglican canon law developed and led by Professor Norman Doe of the Centre for Law and Religion at the University of Wales, Cardiff. In April 2002 the Anglican Primates stated that the ‘… unwritten law common to the Churches of the Communion and expressed as shared principles of canon law may be understood to constitute a fifth ‘instrument of unity’ …’ adding, ‘Given that law may be understood to provide a basic framework to sustain the minimal conditions which allow the Churches of the Communion to live together in harmony and unity, the observances of the ministry of Word and Sacrament call us all to live by a maximal degree of communion through grace.’[2] In October 2003, as storm clouds seemed about to break, the Primates established a commission whose mandate included an examination of the canonical understandings of impaired and broken communion[3]. The old order, in which Anglican churches were ‘… bound together not by a central legislative and executive authority, but by mutual loyalty sustained through the common counsel of the bishops in conference.’[4], having been eroded, now seems to be slipping away. A new legislative order with centralised structures appears to be growing. Alternatively, the turn to law will simply sharpen the definition of schism. The sheer depth of division in the Anglican Communion, and the passionate desire of some to separate themselves from those they regard as heretics[5], is likely to be a greater centrifugal force than canon law or archiepiscopal wisdom can contain. Sadly, the law that will be most prominent in the event of schism will be the civil law as court battles are waged over finance and property. The Anglican Communion is an imagined community. Its members will never meet most other members and yet each will acknowledge the ‘deep, horizontal comradeship’[6] of belonging to the same group. Unity is the quality of comradeship in a community of strangers. It is participation in a shared historical narrative, the mutual expectation of assistance in times of need, the presumption of allegiance in relations with other churches and faiths, and the assumption of a sufficient bedrock of common belief beneath all visible differences. It is the open welcome of my house is your house. Law, like the other formal instruments of unity, is an epiphenomenon of this deep comradeship. Schism is refusal to remain under the same roof as erstwhile comrades and the consequent departure or eviction of groups who then establish separate, mutually hostile houses. In these circumstances none of the instruments of unity can save the Communion since they all depend on the willing assent of the people they encompass. Law cannot help as schism is the denial of any shared jurisdiction. Whether this present conflict issues in schism or not, one probable legacy is that law will play a more salient role in all subsequent structures. A Legal Advisors’ Consultation identified 44 shared principles of canon law hidden in a plurality of jurisdictions[7]. They covered the core issues of:
The absence of a legal definition of the Anglican Communion or of its constitutional linkages was identified as a problem which, if the Anglican Communion remains together in some form, will undoubtedly be redressed in legal terms. Such steps will almost certainly begin a movement towards a global jurisdiction. It may begin with shared principles but, as principles need to be substantiated, global legal developments will inevitably and progressively require corresponding changes in the core areas of what are currently the internal laws of each jurisdiction. The Communion will slowly become a global denomination with a common jurisdiction (and, conceivably, subordinate local jurisdictions), with corresponding global and centralised political and decision making structures, and probably significantly less flexibility and adaptability. It would be deeply regrettable if, at the point of crisis, pre-emptive legal steps were taken which inadvertently resulted in jettisoning Anglicanism’s historically conciliar ordering. Whatever happens it is likely that, as the dust settles, ecclesiological debate will bloom. People from every corner of Anglicanism will seek to contribute to defining the shape of the emergent Communion. Globally and locally the role, potential and limits of law need to be part of this debate and it is too important to be left to lawyers. Canon law is woven ambiguously in the fabric of Anglicanism. Law has been the traditional, primary and ubiquitous instrument by which decision makers in Anglican churches have sought to effect the embodiment of faith. Specifically reflecting the culture of the Church of England as a state church, Anglican law has historically been grounded in a hierarchy of authority with command as the appropriate language of government. Yet at the same time legalism has not characterised Anglicanism and ‘The Anglican Communion has an inherent scepticism about law, lawyers and all their ways’[9]. This ambiguity embodies the confluence of the Church of England’s historic character with the political reality in the rest of the Anglican Communion (and the Church in contemporary England) that membership is entirely a matter of choice. Canon law is unevenly observed. In some areas, such as constitutional and property issues, ecclesiastical law is generally observed with care. In other areas laws may be largely unenforceable or unenforced. Church courts do not sit in many places[10]. Some laws are unenforceable as written[11]: recent legislation in England, for example, specifies that churchwardens shall serve no longer than six years and then have two years off – unless the PCC decides otherwise[12]. This lack of enforceability reflects the voluntary nature of church membership in which members are not susceptible to coercion[13]. The only sanction available, even in theory, is expulsion from the community and lesser punishments derived from expulsion[14]. Where church law relates to ministers two further sanctions are available: withdrawal of finance; and withdrawal of authorisation as a representative of the church (and lesser punishments derived from these). To be effective canon law requires not powers of enforcement so much as the active assent of the governed. For example, in England until the last quarter of the twentieth century, laws governing liturgy were perceived to be vital to secure uniformity of worship. Such uniformity was perceived as a dominant ecclesiological quality, and an attainable ideal, and in its absence the Church would be irrevocably damaged. In the nineteenth century, prosecution and punishment of ritualists[15] failed to constrain their consciences or activities and simply made martyrs. Conversely the law allowed no deviation from the words of the Book of Common Prayer, howsoever small[16] and therefore almost every church service was in some way illegal. After Parliament twice rejected a proposed prayer book in 1928 and 1929 the bishops declared they would not act against clergy who conducted services within the boundaries of the rejected book[17], thus negating the statute law which the state declined to enforce. By the present Declaration of Assent[18] a minister swears to use only those forms of service which are authorised or allowed by Canon. The declaration is frequently honoured in the breach, cannot be policed, and is vitiated by the proliferation of orders of service aided by developments in technology. In the course of 150 years the law on liturgy has been applied destructively, ignored explicitly and by default, and repeatedly re-written. The unattainable goal of uniformity of worship has been abandoned. In the area of clerical discipline, however, regulation by law and code of practice, and their enforcement, is likely to grow considerably. In part this is defensive[19] and due to external pressures[20]. Reliance on the conviction that clergy would behave as gentlemen, confessing their misdemeanours honestly when challenged and amending their ways when admonished by the Bishop, now seems archaic, naïve and complacent. Lack of effective regulation has allowed abuse to happen, failed to provide adequate remedies when abuse was identified[21], and permitted much mediocre and casually harmful pastoral practice. In this sphere legal safeguards are necessary for all concerned and, with care, regulation may help move pastoral relationships significantly above the basic minimum. By contrast application of law to doctrine would be counter-productive. There are several practical, historical, and political arguments against the use of law to control theological expression but, at root, law and doctrine are conceptually incommensurable. For doctrine to be enforced through the courts, first, the professed doctrines of the church need to be in a form which a court can regard as equivalent to positive law and, second, the theological statements of the accused must be in a form which can be measured against normative doctrine. The assertion that the doctrine of the Church of England has ‘… a hard central core (represented by the Scriptures and the Creeds), and a less clear-cut, more fuzzy circumference.’[22] is little help. The desire for the capacity to hold what will inevitably be regarded as ‘heresy trials’ is the desire for theology without ambiguity, a hope which is unrealisable, pernicious, and perennial[23]. The application of law to the present conflict in Anglicanism appears to reflect a political judgement that the stream of conciliarism has run dry. Yet there may still be life in it. The conciliar tradition has developed from its articulation in 1930 to include not only bishops but clergy and lay people as well, though there is still room for further development in the inclusion of the whole people of God as full and equal members. In this conciliar mode law is less the instrument of command than an expression of agreement. A church’s laws, in sum, specify the nature of that church, the terms on which members join, and the constitutional arrangements by which members disagree, effect change, and remain together. Thus canon law constitutes a compact between its members and enforceability rests on the informed assent of the governed. In this dispensation the language of government is dialogue. Effective horizontal communication of ideas, management of open debate, and the establishment of sufficient assent for change[24], are necessary instruments of governance alongside law. Ecclesiastical practice (proclaiming the gospel, rightly administering the sacraments, evoking holiness, engaging with the world, and transmitting the faith) becomes the normative standard by which a church judges its governance. Therefore in liturgy, for example, law may safely be discarded and replaced with guidelines, models of good practice, mutual support and criticism, and the rhetoric of exciting holiness. In pastoralia enforceable law may work hand in glove with ethical codes, training, critical supervision, and appropriate safeguards, to improve significantly the quality of pastoral relationships and care. Doctrine is a more difficult area. The instinctive assent to the proposition that churches are (at least in part) constituted by their beliefs implies that for survival a church requires the means by which to exclude beliefs, and in particular the teaching of beliefs by its authorized representatives, which are contrary to or incompatible with the professed doctrines of the church. However re-evaluating the place of doctrine in the church may offer less confrontational methods of managing theological debate. The categories ‘orthodox’ and ‘heterodox’ may, perhaps, be replaced by ‘received’ and ‘exploratory’ belief. Doctrine might be seen less as an individual pursuit than as a corporate responsibility, in which the whole church, including the laity, is complicit in the reception, holding and modification of belief. Conversely all members, including authorised clergy and teachers, may be encouraged to share their exploration of faith as contributions to the spiritual vitality of the church. Sometimes the results will be uncomfortable; some influential people will stray significantly from received beliefs; and more church people will have a deeper and wider understanding of, and informed participation in, the conceptual and spiritual heart of belonging. None of this would stop dissension. On the contrary it would involve a far greater proportion of church members in debate. It implies, and would effect, changed relationships between laity, clergy and bishops. Wider participation would require and should foster mutual trust, and achieving this trust and disagreement is a central art of church government. Contention is not necessarily division: the very fact of struggling together can reinforce the sense of camaraderie, of living together under the same roof in an imagined community of strangers as friends. Of course some people will never find their home in such a church. Those who listen for univocal truth, and seek to voice what they hear to the exclusion of others; those who demand certainty from transcendent God; and those who grasp for timeless, essential and justiciable verities, will never be comfortable in such an open and spacious church. Yet many would find it home; and even those who do not may benefit from its presence. Law will undoubtedly be an important component of any post-crisis settlement in Anglicanism. It is possible that, just as some people will marry as a last ditch attempt to stop their relationship fracturing for ever (or to give them greater rights if it does), the global leaders of the Anglican Communion will take steps to lock together the member bodies of a newly reshaped Communion in a legally defined structure within a new global jurisdiction. If so, this will reflect a negotiated settlement between global leaders at the cost of a narrower church. A settlement will not stop debate. If Anglicanism is to be rebuilt and refurbished then each member, including those happy with the old décor, may want a say on the new scheme of things since all will have to live with it. Questions of jurisprudence, of the efficacy and limits of law, of the instruments, language and tests of church governance, of the role of all members in initiating and assenting to change, should be firmly embedded in that vibrant ecclesiological discussion. The goal will be to discern by what means the whole church may aspire to and achieve the maximal degree of communion through grace. [1] This relationship needs much more critical analysis. ‘Though Garth Moore emphasised that “The basis of the canon law is theological”, generally the connection is underdeveloped in Anglican jurisprudence.’ Norman Doe, The Principles of Canon Law, Ecclesiastical Law Journal, Vol. 5, July 1999, p. 226. [2] Report of the Meeting of the Primates of the Anglican Communion, Canterbury 10-17 April 2002, ACNS 2959, 17 April 2002. The other instruments are the Archbishop of Canterbury, Lambeth Conferences, Primates Meetings, and the Anglican Consultative Council. They are supplemented by a range of informal linkages. Canon law encompasses constitutions, statutes, canons, quasi-judicial regulation and codes of practice, as well as ecclesiastical courts, judgements and their enforcement. [3] Commission announced. Statement from Lambeth Palace, 28th October 2003, ACNS 3652. The Commission included Professor Doe. Members of the Anglican Communion have been in
varying degrees of communion with one another since their differential responses
to the inauguration of the Church of South India in 1947, as well as over the
ordination and consecration of women. It
has not required a legal framework to date. [4] Resolutions of the Lambeth Conference 1930, London, SPCK, p. 53. [5] For example, ‘God willing, the defining battle of the war for Anglicanism's soul will be fought next week. [at the October 2003 meeting of Anglican Primates]’…‘In his humanity, he [the Archbishop of Canterbury] will surely seek a compromise, but compromise will surely rend the baby in two pieces. The South cannot compromise, nor can we, because to do so is to embed a lie so deeply in our gospel, that our gospel (but not that of Jesus Christ, of course) will eventually perish because of it.’ Robert Duncan, Bishop of Pittsburgh, A Place to Stand: Declaring, Preparing, American Anglican Council's Plano (Dallas) Conference, 8 October 2003. [6] Benedict Anderson, Imagined Communities, Reflections of the Origin and Spread of Nationalism, (London, Verso, 1983), pp. 15-16. Anderson characterises nations in terms often transferable to churches. [7] Professor Doe has outlined an eleven point methodology by which the elements of Anglican law held in common have been identified. Ecclesiastical Law Journal, Vol. 7, 2001, pp.13-15. The method of analysis may be criticised as overstating what is held in common and undervaluing the diversity that it also reveals, but the central conclusion that Anglican provinces share many legal principles is shown conclusively. [8] Report of the Meeting of the Primates of the Anglican Communion, Canterbury 10-17 April 2002. [9] John Rees, Report on Guidelines for Membership by New Provinces, in: Being Anglican in the Third Millennium. The official report of the 10th meeting of the Anglican Consultative Council, Panama 1996, London, The Anglican Consultative Council, 1996, p. 105. Canon Rees is Legal Advisor to the Anglican Consultative Council. [10] Norman Doe, Canon Law in the Anglican Communion: A Worldwide Perspective Oxford, Clarendon Press, 1988, p. 5. [11] For example, Canon B8 (5) of the Church of England declares that the Church of England attaches no particular doctrinal significance to the permitted diversity of vesture. The effect of this canon would seem to be the same as if the canons were silent on the matter. [12] Churchwardens Measure, 2001, Section 3. It also seems improbable that Dioceses will keep the systematic records of periods of election and PCC resolutions necessary to police the rule, or that Archdeacons would systematically proceed against PCCs which ignored the Measure. [13] The Church of England is unique in the Anglican Communion in that its Measures are laws of the state. Rules and actions of voluntary bodies are potentially subject to review by the relevant civil courts. [14] An action to expel a person or group may well be subject to review by the secular courts, entangling a church in considerable cost and obloquy. [15] See, for example, Robert E Rhodes, Law and Modernization in the Church of England: Charles II to the Welfare State (Notre Dame, Notre Dame Press, 1991) Chapter 4. [16] ‘... a clerk has no right in performing divine service to alter, omit, or add anything to the prescribed form, including the lessons to be read.’ Ecclesiastical Law, reprinted from Halsbury’s Laws of England, Third Edition, London, Butterworth & Co., 1957, p. 328. Cf. Martin v. Mackonochie (1886) Ibid. p. 339. [17] Church & State, London, The Press and Publications Board of the Church Assembly, 1935. [The Cecil Report], p. 39. [18] Canon C15. This was itself a stage in a long and sometimes hotly disputed attempt to use the swearing of an oath as a means attain uniformity in worship and conformity of clergy. [19] Francis Bridger, commending the proposed Clergy Discipline Measure for its positive value, stated that the code was ‘… designed to protect three parties: the accused, the accuser and the Church.’ Clergy Discipline Measure, A Theological Reflection, Epiphany 2002. [20] In America, following law suits that exposed the inadequacy of the church’s previous practice, ‘… the church’s insurers soon began requiring all kinds of measures to limit liability. These included a complete revision of the disciplinary canons.’ Pierre W. Whalon, The Discipline of Canonical Enforcement, Anglicans Online, 4 February 2001. [21] Jane Hendtlass, interim Director of Professional Standards in the Melbourne Anglican Church, identified a series of organizational factors that provided opportunities for sexual abuse and militated against an appropriate response: the desire to protect the institution; secrecy; power differentials in a hierarchical structure; men with structural power over lay volunteers the majority of whom are women; the pattern and lack of oversight of ordained ministry: Jane Hendtlass talks about sexual abuse in the Church and the need to protect the vulnerable The Melbourne Anglican, February 2003. [22] Under Authority, Report on Clergy Discipline, The Report of the General Synod Working Party reviewing Clergy Discipline and the working of the Ecclesiastical Courts, (GS 1217) (London, Church House Publishing, 1996), p. 53. This dubious concept was the foundation for the report’s recommendations on discipline in relation to doctrinal matters. [23] A Church of England Working Party on Clergy Discipline (Doctrine) is due to report early in 2004. The group was said to be deeply divided but working on tribunals sitting in private with theological assessors. Clergy could face heresy charges in new tribunals, Jonathan Petre, Daily Telegraph, 20 July 2002. Such tribunals would presumably have to conform to Human Rights legislation. [24] Sufficient assent is preferable to consensus which effectively hands a veto on change to the most obdurate, however few. |
