ACNS 2406 - PRIMATES’ MEETING - 8 March 2001
Canon Law and Communion
Professor Norman Doe
Kanuga Episcopal Conference Center, USA
I should like us: First: to reflect on Anglican experiences of church order and law. Second: to identify the role which the legal system of each Anglican church plays in the context of the global Anglican Communion - especially how collectively these systems point to an unwritten common law of the Anglican Communion. Third: to consider some practical ideas about how the law of each church might be developed to enhance global communion.
The Meanings of Canon Law
Like all major institutions in any society, which have a visible social structure, each church has its own internal legal system. Canon law is the title given to the legal system which churches of the catholic and apostolic tradition create to regulate their internal life - their government, ministry, doctrine, liturgy, rites and property.
For Anglicans canon law has three meanings. First, it is understood in a narrow sense: canon law is simply the code of canons of an Anglican church. Canon law is one category amongst several bodies of law within a particular church.
Secondly, canon law is understood in a wider sense: it is the formal collection of several bodies of law within a particular Anglican church. Canon law embraces all formal laws, and includes the constitution, the code of canons, and other formal legal instruments.
Thirdly, in its widest sense, canon law may be understood as the entire system of ecclesiastical regulation in a particular Anglican church. It signifies a wide range of regulatory experiences: all those humanly-created entities used to regulate church life - such as unwritten custom, pastoral regulations or directions of bishops, and even decisions of church tribunals. These entities may or may not appear in the formal, written law of the church (the constitution or canons). But they are used to regulate conduct; they are equivalent to canon law. Informal administrative rules may also be used to regulate church life: policy documents, guidelines and codes of practice. But these are different from canon law in the strict sense.
The Relationship between Canon Law and Divine Law
Canon law is different from the law of the State. It is also different from divine law. In canonical tradition, the revealed divine law (as expressed in Holy Scripture and interpreted by tradition) is usually seen as distinct from canon law. Divine law is the dynamic behind all canon law. Canon law is of human creation. Generally, divine law is a source of humanly-made law and, therefore, is strictly distinguished from canon law. Divine law binds morally and is used to fashion canon law which binds juridically.
THE ANGLICAN EXPERIENCE OF ORDER AND DISCIPLINE
In the context of order and discipline, through living out the gospel, Anglicans have two experiences: the juridical experience of the legal system of their own particular church; and the moral experience of the global Anglican Communion.
The Juridical Order and the Purposes of Canon Law: Ecclesiology and Service First, the juridical experience. On the one hand, Anglicans live, in their particular church, in the context of the gospel at work in a juridical order. They function in the framework of their own church and its particular legal system. Each church, as a visible society, is subject to its own binding juridical order, consisting of enforceable canon law. Anglican churches are canonical churches. Canon law is the servant of each Anglican church: it seeks to facilitate and order communion amongst the faithful within each particular church. Canon law is not an end in itself; it is a means to an end. Canon law, as servant, exists in each church to enable it to fulfil its particular mission, to live out the gospel. It is an instrument of unity and communion within a particular church.
On the ecclesiological level, canon law seeks to put into practice the revelation of God: God reveals; the church reflects on revelation; the church formulates theology; theology provides the church with a vision and definition of its purposes and Christian values; and each church implements these in the form of law. Canon law provides norms of action to implement values designed to serve the purposes for which the church exists. So: canon law has a theological basis: theology works through law; canon law is applied ecclesiology, and, for some it has a sacramental quality. The gospel may not be sufficiently evident in all the rules of canon law: but it is its foundation; canon law should be a church’s testimony to the gospel.
On the practical level, the purposes of canon law are to facilitate and to order the life and mission of the particular church. Canon law, in a fundamental, practical way, constitutes the particular church: it liberates and it requires self-restraint. Canon law provides facilities to enable the church to serve God and the people; it gives meaning to these facilities by conferring jurisdiction, and by defining relationships within a church through rights and duties. Also, canon law is an instrument of ecclesial order - it exists for spiritual welfare and for the common good: it sets limits on the exercise of jurisdiction, it protects rights, and provides for resolution of conflict. Canon law facilitates and orders communion in the mutual relations of the faithful within the particular church. This is the juridical experience of Anglicans in the particular church.
The Moral Order of Inter-Church Relations: Communion and Autonomy On the other hand, Anglicans live, in the wider environment of the Anglican Communion, in the context of the gospel at work in a moral order: the Anglican Communion functions in the framework of its own non-legal, moral or conventional system. In turn, the community of churches (the Communion) is the subject of its own non-binding, persuasive moral order. In the global environment, the principles of communion have no direct juridical force or enforceability.
The Anglican Communion is a community of self-governing churches in communion with the See of Canterbury, and with each other. Fundamental to this fellowship of faith is the moral principle of communion: communion embraces a range of relationships. Anglican churches are assembled under the moral authority of the instruments of Anglicanism. First, the moral authority of the instruments of faith: Holy Scripture, Tradition and Reason; churches are held in communion by loyalty to scripture, the sacraments of baptism and eucharist, the historic episcopate, and common patterns of worship. Adherence to these is a matter of faith, moral choice for each church.
Secondly, the moral authority of the institutional instruments: at the global level, the Archbishop of Canterbury, the Primates Meeting, the Lambeth Conference, and the Anglican Consultative Council, exercise no legal authority over individual churches: their authority and leadership are moral; their decisions do not bind particular churches, unless and until incorporated in their systems of law.
Thirdly, the principle of autonomy: each church is free to govern itself. This principle of autonomy is conventional: ‘the true constitution of the Catholic Church involves the principle of the autonomy of particular Churches based upon a common faith and order’. The churches ‘promote [in] their territories a national expression of Christian faith, life and worship’. But communion and autonomy are about facility and order, freedom and self-restraint. The Lambeth Conference has enunciated several principles to promote these in inter-church relations. For example: each church should respect the autonomy of each other church; two bishops should not exercise jurisdiction in the same place; no cleric should minister in another diocese without the consent of the host diocesan bishop; churches should co-operate to further mission; and dioceses should develop companion dioceses.
All these instruments and principles have a persuasive, moral authority, at a global level, over churches of the Communion. They are exhortatory not mandatory. They have juridical force only if incorporated in laws of particular churches. This is the moral experience of Anglicans in the global context of the Anglican Communion.
The Anatomy of Inter-Church Conflict: Causes and Effects How do these two experiences of Anglicans relate to contemporary disagreements between churches? It is difficult to identify precisely the anatomy of disagreements between Anglican churches. Problems are complex and multi-faceted: theology, tradition, culture, human experience, and even civil law, would all seem to play a part.
The Role of the Moral and Juridical Orders in Cases of Conflict One practical feature of inter-church conflict is that it is in part encouraged by the relationship between the juridical and the moral orders. There are fundamental similarities and differences between these two orders. Both have similar purposes: canon law seeks communion amongst members of the local church, the moral order seeks communion between churches; the local juridical order enables episcopal oversight in the particular church, the moral order seeks to facilitate episcopal counsel globally. These similarities are not the cause of inter-church disagreement.
The differences between the two orders are clear. The global order consists of persuasive principles and instruments, not binding on individual churches, the local order binds churches legally. The global order is unenforceable, the juridical order is enforceable. These differences might contribute to inter-church disagreement. There is no developed marriage between the juridical and moral orders, no concerted translation of the moral order of global communion into the juridical order of local communion in each church. Translation, into the juridical order of the particular church, would make the moral order binding and perhaps reduce the possibility of conflict. In short, the exercise of autonomy, freedom given by the local juridical order, and the unenforceability of the moral order, increase the potential for conflict.
Ecclesiastical and Secular Parallels
We might compare the Anglican experience of disagreement with other ecclesiastical and secular experiences. For example, as we know, in secular politics, to manage disagreements, and to promote mutual values and partnership, States enter treaties and conventions with each other, within the moral order of the comity of nations. These agreements may have status in international law, but only a moral force within States; they have direct effect within States only if incorporated in their laws. Anglican churches have no treaties or conventions to regulate their relations. Comity between Anglican churches, in the global moral order, is not based on inter-church treaties which might be incorporated in their domestic laws. The principles of communion and inter-church relations are left suspended in the global moral order.
CANON LAW AND THE PROMOTION OF COMMUNION
The Role of Individual Canonical Systems
Canon Law as a Centripetal Force
Examination of the legal systems of Anglican churches shows that global communion is a juridical reality for some churches in certain contexts. Law in a church promotes global communion, it is a centripetal force pulling that church towards Canterbury and towards other Anglican churches. There are many examples of communion law in particular churches.
Laws occasionally identify a church with the See of Canterbury and with the Anglican Communion. Sometimes laws declare a church’s membership of and commitment to the Anglican Communion. Laws of this sort range from descriptive statements, to rules imposing a duty to maintain communion. In one church communion is treated as indissoluble. Such provisions do not appear in the formal laws of most Anglican churches, nor usually does formal law even define the Anglican Communion.
Incorporation of the Anglican instruments of faith, in law, forbids legislatures to make law contrary to these instruments. Indeed, some laws require alteration of the Fundamental Declarations of a church to be ‘endorsed by the Archbishop of Canterbury as not affecting the terms of Communion between [that church], the Church of England and the rest of the Anglican Communion’. Communion law of this sort is exceptional. Very few laws explicitly state that executive discretions (in bishops, for example) must be exercised in accordance with the instruments of Anglicanism.
In ministry, occasionally laws require bishops to ‘respect and maintain the spiritual rights and privileges of all Churches in the Anglican Communion’. Sometimes, laws forbid parallel episcopal jurisdictions. In some laws, if the electoral college fails to elect a bishop, the appointment passes to Canterbury. Sometimes laws formally recognise orders in other Anglican churches, but they forbid clergy of other Anglican churches to minister in a diocese without the consent of the bishop of the host diocese.
In doctrine and liturgy churches are united because laws agree about the sources of doctrine as normative in matters of faith: scripture, the creeds, the dominical sacraments. Some laws require a church to avoid any change that would affect Holy Scripture and ‘other norms relevant to the faith of the Anglican Communion’. The laws of other churches disclaim a right to depart from the standards of faith and doctrine. Again, sometimes laws provide for referral of a doctrinal disagreement to the Archbishop of Canterbury, or the ACC, or the Primates or other bishops of the Anglican Communion.
Canon Law as a Neutral Force
In contrast, most canon law in a church is neutral or indifferent towards the Anglican Communion: it is introvert law; it has no obvious function to effect bonds between that church and other Anglican churches. Law does not look outwards to the global Communion, but inwards to the internal regulation of the church, its domestic affairs.
But, extrovert law also, ironically, illustrates the neutrality of laws towards the Anglican Communion. Laws governing ecumenical relations between Anglican churches and non-Anglican churches are more fully developed than those dealing with inter-Anglican relations. Increasingly, churches now promote and regulate ecumenism by means of law.
Extrovert law implements ecumenical agreements for communion between Anglican and non-Anglican churches. Relations of full communion or intercommunion are defined in a concordat. To operate in the Anglican church, the agreement is incorporated in its law: it then enters the juridical order of the Anglican church and becomes binding.. The Anglican law defines, implements practically the communion between the churches, as rights and duties; the Anglican church recognises that in the other the sacraments are duly administered; each church welcomes one another’s members ‘as members of our own’; clergy are allowed to serve in the church in accordance with its own laws. And so on.
So: from the legal evidence, relations between Anglican churches are based on conventional links (of the moral order), whereas those of Anglican and non-Anglican churches are increasingly being based on juridical links - juridical bonds between Anglicans and non-Anglicans may be stronger than those between Anglican churches.
Canon Law as a Centrifugal Force
Centrifugal law also exists in Anglican churches; some laws are antagonistic to global communion; they push Anglican churches away from each other. The robust canonical expression of autonomy acts as a centrifugal force. Like secular States, Anglican churches have territorial and jurisdictional borders. Laws not uncommonly provide: ‘in explaining...the standards of faith...and discipline’, this Church ‘is not bound by any decisions except those of its own’. Laws sometimes assert the idea of independence, rather than autonomy. Each church, then, institutionalises in law its own separate identity from other Anglican churches. Law does not spell out the part the church is to play in the global communion; laws convey a sense of isolation of the particular church.
The exercise of autonomy may result in the apparent conflict of laws. Law in one church, which permits ordination of women as priests, does not authorise consecration of women as bishops, but law of another church does. In most laws, deposition from holy orders is irreversible; but other laws allow reversal of deposition. And so on.
Canon law sometimes creates divisions within churches, or fails to resolve internal conflict. This failure reverberates in other Anglican churches, causing divisions between churches and, ultimately, problems for the Anglican Communion itself. Most laws seek to prevent disagreement about proposed legislative initiatives by procedures for law-making designed to achieve consensus. Also, all churches have some system for resolution of internal conflict. However, systems are less well-developed in managing conscientious dissent by minorities following initiatives within a particular church; provision of alternative episcopal oversight is a recent innovation to manage this. The use of conscience clauses in church law is not common. Indeed, lack of developed law in churches on inter-Anglican relations increases the likelihood of conflict. Finally, ecclesial conflict may cause litigation in State courts, raising issues of religious freedom.
The Role of Anglican Canon Law and Canonical Tradition Fundamental Anglican Canon Law: The Anglican Common Law There is, of course, no formal binding canon law globally applicable to all churches in the Anglican Communion. But by implication fundamental Anglican canon law exists as an objective reality. When compared, there are profound similarities between the actual laws of each particular Anglican church. From these similarities many shared principles can be induced. This process of induction indicates the unwritten common law of the Anglican Communion, its ius commune. The collective effect of similarities between individual canonical systems is the ius commune, fundamental Anglican canon law. This common law is not imposed from above; it grows from the similarities between Anglican legal systems. Each church, through its own legal system, contributes to the common law.
Identifying the principles of this common law is a scientific task. These similarities, and the principles flowing from them, indicate well, even define, the nature of the Anglican Communion: they are a concrete expression of the very character of Anglicanism and Anglican polity. And the ius commune indicates that ‘communion’ is a whole, rich range of relationships. From the juridical evidence in each church, it is possible to state the principles of the common Anglican canon law: some facilitate, others order and limit; most are familiar, and many self-evident. Some examples:
In ecclesiastical government: final competence to legislate for a church rests with its central assembly representative of the bishops, clergy and laity; churches are episcopally led and synodically governed; governance should be according to law; disciplinary processes must give rights to be heard, to representation, and to appeal. The common law of ministry includes the principles that: ordained ministry is exercised by the threefold ministry of bishops, priests and deacons; diocesan bishops should be elected; bishops exercise oversight in the governing, teaching and liturgical life of the diocese; removal of bishops is for the collective action of bishops in an individual church; ordination must be episcopal; clerical ministry must be authorised by the diocesan bishop; clergy owe canonical obedience to the bishop. With doctrine and liturgy: liturgy must be consonant with the doctrine of the church and should be characterised by flexibility. With rites: no minister should refuse baptism of infants; exclusion from holy communion ultimately belongs to the bishop; the seal of the confessional is inviolable. There are many more.
The Canon Law Tradition: Challenge and Principles
The canonical tradition too links Anglican churches to each other, to the global Anglican Communion, and to other ecclesial communions. Roman Catholic law, and that of the Eastern Catholic Churches, recognise formally the canonical tradition, as does the law of some Anglican churches: in the law of the Anglican church in Southern Africa if any question arises about the interpretation of the laws of the church, ‘the interpretation shall be governed by the general principles of Canon Law’.
All these churches live out, in their juridical orders, the canonical tradition. Whether they are conscious of it or not, Anglican churches belong to the canonical tradition. The generic canon law exists independently of the laws of particular communions and particular churches. The canonical tradition is merely particularised in individual canonical systems, in the same way that civil law, or common law is, particularised in a single civil law system or a common law system of an individual secular State.
The principles of the canonical tradition are foundational, expressing the basic values of the church and its juridical order. They include: the salvation of souls is the supreme law; laws ought to conform to divine law; in the exercise of rights the faithful must take into account the common good of the church, the rights of others and their duties towards others, and, laws must be applied with canonical equity. These principles have a high theological content.
CANON LAW AND THE DEVELOPMENT OF COMMUNION
The Canonical Contribution to Global Communion: Assessment
Strengths of the Canonical Contribution:
The collective effect of the similarities between individual legal systems is the unwritten ius commune of the Anglican Communion. This is a major contribution to Anglican identity and cohesion; it should be recognised as such and made more evident.
Each church belongs to the canonical tradition: it particularises that tradition to its own circumstances. This is a real contribution to global unity, and ecumenical dialogue.
Global communion is a juridical reality for many churches in certain areas of their life. Best practice is found in communion law of some churches, which pulls a church towards other Anglican churches.
There is evidence that canon laws seek to effect freedom for each autonomous church and at the same time impose restraints on the exercise of their autonomy.
Weaknesses of the Canonical Contribution:
The distribution of centripetal law amongst churches is inconsistent. No church has a systematic body of communion law dedicated to inter-Anglican relations.
Centripetal laws often lack precision, and are often unclear or underdeveloped.
The principles of the moral order, governing inter-Anglican relations and the limits of autonomy, are not consistently incorporated in the laws of individual churches.
As canon law may cause division within a particular church, so centrifugal canon laws contribute to global divisions, disagreement and conflict between Anglican churches. No church has law to avoid or to resolve inter-Anglican conflict.
The Potential of Canon Law for the Development of Communion So: generally, Anglican canon laws are ambivalent to global communion. Yet, the canon law of each Anglican church should be a true reflection of global communion between Anglican churches. The canon law of each church has potential to develop communion: it is a means to an end, the servant of the church; it exists for facility and order; it is binding within the individual church; it already contains the materials necessary to enhance global communion; and its use is a normal human function, not a last resort.
The canon law of each church could be more fully developed to enhance communion. This would be consistent with the principle of autonomy and in line with the Virginia Report and resolutions of the Lambeth Conference 1998. Exploration of the canonical option might move these recommendations forward. It would also mean that individual churches would be responsible for enhancement of communion.
Canon law in each church has real potential to make global communion a binding, juridical reality in each church. Crucially, canonical development could translate the imperatives of the moral order into the juridical order of individual churches. Translation means working with the practical reality that juridical authority lies with particular churches. Canonical development would provide corporate discipline at the critical level: the particular church. Distinct communion law in each church might achieve this, as a long-term measure.
One obvious model for such a development is the existing laws of some Anglican churches on ecumenical concordats and their incorporation in canon law: this is a practical experience of translating the moral order of communion, defined in an ecumenical concordat, into the juridical order of particular churches.
Practical Realisation of the Canonical Potential
A process of canonical development, to lead to fulfilment of the canonical potential, could be an initiative of the Primates’ Meeting.
The Primates’ Meeting might begin the process by acknowledging the living reality of the ius commune of the Anglican Communion, the unwritten common law based on the profound similarities of individual Anglican legal systems. Each Primate could take this acknowledgement back to their own church.
The Primates Meeting might institute an examination of: (a) individual legal systems, to identify the extent of centripetal, neutral, and divisive law, the principles of the Anglican common law, and the canonical tradition; and (b) other models (ecclesiastical and secular) which reconcile community and autonomy, including systems for the resolution of conflict, and ways in which these might be adapted to the Anglican context.
The study could recommend to the Primates Meeting ways for each church to develop its own communion law to increase the profile of communion, to define inter-Anglican relations, and treat inter-Anglican conflict. The Primates could draft a statement of the ius commune, in a draft concordat, for each church to implement.
This draft would be circulated to all individual churches in the Anglican Communion, for consultation with their central legislatures.
The Primates Meeting would consider and where appropriate adopt the results of consultation. A Declaration of Common Anglican Canon Law and Polity could be issued by the Primates Meeting, in the form of a concordat: all Primates would be signatories. The statement would not of itself be law, issuing from the global moral order, but rather would set out the programme for canonical revision in each church.
It would be essential for the primates and bishops, with feedback to the 2008 Lambeth Conference, to stimulate reflection in churches on the need to implement the Declaration.
Individual churches, perhaps in groups by means of covenants (with a lead from the Church of England), would begin work on incorporation of the Declaration into their legal systems. Each church would have a body of distinctly Communion Law.
The Declaration could be subject to periodic review and development by the Primates Meeting and individual churches could review periodically both the incorporation and the administration of their communion laws, perhaps with reports to the Primates Meeting.
CONCLUSION:
Acknowledging the existence of the ius commune would make more evident what Anglicans share. It would not be new but a statement of what already exists. A declaration of the principles of Anglican canon law would be rooted in theology and based on the best practice of churches, the Anglican common law, and the canonical tradition. It could be issued by the Primates Meeting in the form of an inter-Anglican concordat, would define inter-Anglican relations and the meaning of communion. With this lead, and its promotion of canonical values, it would then be the responsibility of each particular church to enhance global communion by implementing the statement in its own legal system in the formation of distinctly communion law. Subsequent incorporation of these principles into individual canonical systems would convert the existing moral force of inter-Anglican communion into a binding reality for each particular Anglican church. Incorporation of the inter-Anglican concordat into actual canon laws, by means of canonical revision in each church, would be a long-term solution both to enhance global communion, at the binding juridical level of each church, and to reduce likelihood of the occurrence of inter-Anglican conflict.
Professor Doe from Wales is a professor at the Law School of Cardiff University and Director of its Centre for Law and Religion. In 1991 he set up the Masters Degree in Canon Law at the University. His books include The Legal Framework of the Church of England and Canon Law in the Anglican Communion. He is a member of the European Consortium for Church-State Research, and of the Colloquim of Anglican and Roman Catholic Canon Lawyers. In his spare time he is organist at a church in Cardiff.