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As the Society's 1997 Residential Conference Draws Nigh Mark Hill1 Offers a Taste of Manchester
Published online by Cambridge University Press: 31 July 2008
In his obituary to the late Chancellor Garth Moore, Chancellor Quentin Edwards QC recalled one of Garth's constant sayings: ‘It may be possible to be a theologian without being a canonist; but it is impossible to be a canonist without being a theologian’. The recent Lyndwood Lecture marking, as it did, the first joint venture between this Society and the Canon Law Society of Great Britain and Ireland, brought into sharp focus some of the differences between Anglican and Roman Catholic canonists. The laws of the latter reveal a more visible and systematic theology whereas those of the Church of England are unashamedly positivist both in form and ostensible origin. This paper seeks to consider the role of the Gospel in the contemporary governance of the Church of England and to isolate—but not resolve— certain of the ‘practical parish problems’ which will fall to be addressed at the forthcoming residential conference.
2 Church Times. 15 June 1990. Accordingly it is with some diffidence that I proceed with this paper, being (forgive the oxymoron) but a humble barrister.
3 Ferme, Brian, ‘William Lyndwood and the Provinciale—Canon Law in an Undivided Western Church’, London, 2 November 1996Google Scholar. This lecture, the text of which is reproduced elsewhere in this volume, grew from an idea of Clark, O. W. H. Esq. and evidences the power and effect of the letters column of this Journal: see (1993) 3 Ecc LJ 46.Google Scholar
4 It had its genesis in a sermon delivered at Keble College, Oxford, on 17 November 1996. I am grateful to the Warden and Fellows for their hospitality, and to Dr Norman Doe. Fr Robert Ombres OP and the Revd Richard Barrett who kindly commented upon earlier drafts.
5 The term ‘jurisprudence’ poses a difficulty in that it has a particular meaning and function within the Roman Catholic Church in relation to the Curia, namely the accumulation of decisions marking a certain direction in doctrine, ie antecedent as opposed to precedent. See the Code of Canon Law (1983). Canon 19.
6 The Canon Law of the Church of England (SPCK London 1947).Google Scholar
7 See the Editors' Preface to The Code of Canon Law—A Text and Commentary (Coriden, Green, & Heintschel, (eds) 1985), p. xv.Google Scholar
8 For a discussion of some of the deficiencies in the 1917 Code of Canon Law relating to the subject matter of this paper, see Winninger, P., ‘A Pastoral Canon Law’ Concilium 8 (1969) 28Google Scholar. and Greerley, A, ‘Canon Law and Society’ Concilium 8 (1969) 67.Google Scholar
9 For a useful analysis of the institutional sources, purposes, subject matter, nature and enforceability of the law of the Church of England, see Doe, N.The Legal Framework of the Church of England—A Critical Study in a Comparative Context (Clarendon Press, Oxford, 1996), p. 16CrossRefGoogle Scholar. Dr Doe's new book is an excellent and erudite tome, being both exhaustive and exhausting.
10 Working as One Body, Report of the Archbishops' Commission on the Organisation of the Church of England (The Turnbull Report) (Church House Publishing, 1995), para. 1.3.
11 Revised Canons Ecclesiastical, Canon A5. It goes on to say that such doctrine is to be found, in particular, in the Thirty-nine Articles, the Book of Common Prayer and the Ordinal.
12 Matt 16:19, 18:18, 19:28. 28:18: Luke 10:16. 22:28–30; John 20:21.
13 Matt 18:5–17. See also Heb 12:14; Col 1:28; and 1 Cor 5:11–13.
14 Ombres OP, R., ‘Why then the law?’ [1974] New Blackfriars 296.Google Scholar
15 [1974] New Blackfriars 303.
16 Steinmuller, W., ‘Divine Law and its Dynamism in Protestant Theology of Law’ Concilium 8 (1969), 13 at 20.Google Scholar
17 Blake v Director of Public Prosecutions [1993] Crim LR 586, DC. For a fuller transcript, see Hill, M.Ecclesiastical Law (Butterworths, 1995), p. 13Google Scholar. Note, however, the constitutional right of a jury to return what is often styled a perverse verdict exemplified in the criminal damage trial in 1996 in Liverpool Crown Court which related to aircraft destined for East Timor. As to the question of abhorrent legislation generally, see Oppenheiimer v Cattermole [1976] AC 249, [1975] 1 All ER 538, HL, discussed in Hill, p. 9.
18 ‘Canon Law and Theology: Two Different Sciences’ Concilium 8 (1967) 10.Google Scholar
19 The more stoical reader may care to read Corecco, E., The Theology of Canon Law—A Methodological Question (Duquesne University Press, 1992)Google Scholar, reviewed in this Journal by Fr Robert Ombres OP at (1994) 3 Ecc LJ 175; Doe, N., ‘Towards a Critique of the Role of Theology in English Ecclesiastical and Canon Law’ (1993) 2 Ecc LJ 328Google Scholar; Urresti, T. I. J., ‘The Theologian in Interface with Canonical Reality’ 19(2) Journal of Ecumenical Studies (1982) 146Google Scholar: Orsy, L., Theology and Canon Law: New Horizons for Legislation and Interpretation (Collegeville, Minnesota, 1992)Google Scholar; and Barrett, R., ‘Canon Law or Canonical Theology?’ 60 ITQ (1994) 17–38.Google Scholar
20 See note 6 above.
21 The Canon Law of the Church of England, p. 5.Google Scholar
22 N. Doe in The Legal Framework of the Church of England searches, sometimes in vain, for such a jurisprudence. Dr Doe's work is probably the best discussion since Hooker, Richard, The Laws of Ecclesiastical Polity (c 1594), Books 1 to IV, ed Bayne, R. (New York, 1907)Google Scholar. It may be that there is scope for a Hart/Devlin type debate subjecting law and theology to the same critical comparison as law and morality. In this regard, see Mitchell, Basil, Law, Morality and Religion in a Secular Society (Oxford University Press, 1967)Google Scholar, and Anderson, J. N. D., Morality, Law and Grace (Tyndale, 1972)Google Scholar. I am grateful to the Revd John Rees for providing the latter references.
23 Sweet & Maxwell (2nd edn., 1895).
24 See The President's address to the Full Synod of Convocation on 21 May 1957. I am grateful to Edward Pinsent of the Church of England Records Office for his assistance in researching Convocation archives and to Canon Peter Boulton for alerting me to this train of enquiry—would that time had allowed more than an Awayday! Records of debates in synod contain a wealth of wisdom, and following the House of Lords decision in Pepper v Hart [1993] AC 593, [1993] 1 All ER 42, recourse may well be had to these debates on questions of intention and interpretation in like fashion to Hansard.
25 See the Synodical Government Measure 1969 (No. 2). ss 4(2), 5(3), and the Parochial Church Councils (Powers) Measure 1956 (No 3). s 2(2)(b) (substituted by the Synodical Government Measure 1969. s6).
26 See Doe, , The Legal Framework of the Church of England, p. 258.Google Scholar
27 ‘I would certainly deprecate any attempt on either side to put before the court essentially theological or doctrinal disputes’: Simon Brown LJ when granting leave to move for judicial review in R v Ecclesiastical Committee of the Houses of Parliament, ex parte The Church Society (1993) Times, 4 November. See also R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann [1993] 2 All ER 249. [1992] 1 WLR 1036 at 1042H.
28 Ecclesiastical Jurisdiction Measure 1963 (No 1), Parts II–VII (ss 14–48). The author notes with some satisfaction that Under Authority (see note 39 below) proposes that this distinction be abandoned: see para 7.25. Such satisfaction may not be shared by some members of the General Committee of this Society: see the Report of the ELS Working Party on Clergy Discipline and Ecclesiastical Courts (1996) 4 Ecc LJ 510 at 514, para 5.4.2 and note 15.
29 Ecclesiastical Jurisdiction Measure 1963. ss 7. 10.
30 Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). s 1.
31 See Re St Luke the Evangelist. Maidstone [1995] Fam 1 at 6G–7E. [1995] 1 All ER 321. Ct of Arches.
32 See, however. Briden, T. and Ombres OP, R., ‘Law, Theology and History in the Judgments of Chancellor Garth Moore’ (1994) 3 Ecc LJ 223.Google Scholar
33 Parochial Church Councils (Powers) Measure 1956, s 2(1) (substituted by the Synodical Government Measure 1969, s 6, and amended by the Church of England (Miscellaneous Powers) Measure 1983 (no 2), s 5).
34 Parochial Church Councils (Powers) Measure 1956. s 2(2)(a) (as so substituted and amended).
35 For a general discussion of the powers and duties of the parochial church council, see Hill, M., Ecclesiastical Law, pp 89 ff.Google Scholar
36 Lay Office Holders, Report of General Synod Working Party (GS 1164). May 1995. para 4.
37 See ibid., paras 5. 6.
38 See ibid., para 49. See also Re St Peter. Roydon [1969] 2 All ER 1233, [1969] I WLR 1849. Cons Ct.
39 Under Authority, Report of General Synod Working Party (GS 1217) (Church House Publishing. 1996). At the time of writing it is hot off the press.
40 ibid., ch. 3.
41 Working as One Body (see note 10 Above).
4 See ibid., chapters 1, 2. The quotation is to be found in para 1.3. The laws which govern the Church of England are but one aspect of its organisation which relies upon human gifts for effective management. ‘We live out of the resources which God in his love has promised and given, by the Holy Spirit shed abroad in the hearts of the faithful’: para 1.5.
41 See Board and Council Constitutions Quinquennial Review, Report of the General Synod Standing Committee (GS 1136) (13 October 1994).
44 The President's address to the Full Synod of Convocation, 21 May 1957.
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