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Canon Law and Communion

  • Norman Doe (a1)
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This paper deals, in an introductory way, with the role which the canon law of individual Anglican churches plays in the wider context of the global Anglican Communion. Part I reflects on the two main experiences which Anglicans have concerning ecclesial order and discipline: that of the juridical order of each particular church, and that of the moral order of the global communion; it also examines canonical dimensions of inter-Anglican conflict. Part II deals with the contributions which individual canonical systems, the Anglican common law (induced from these systems), and the canonical tradition currently make to global communion. Part III assesses critically these contributions, their strengths and weaknesses, illustrates the potential of individual canonical systems for the development of global communion, and reflects on practical ways in which that potential might be fulfilled. Generally, the paper aims to stimulate discussion as to whether there exists a sufficient understanding of Anglican common law to justify: (a) the issue, by the Primates Meeting, of a statement of this, being a description, which itself would not have the force of law, of those parts of Anglican common law which deal with inter-Anglican relations, (b) incorporation of the statement by individual churches in their own legal systems, so that (c) each church has a meaningful and binding body of communion law. in order (cl) to enhance global communion and inter-Anglican relations, and to reduce the likelihood of inter-church disagreement.

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1 For their comments on this paper. I am very grateful to my colleagues at the Centre for Law and Religion. Law School. Cardiff University. Wales. UK, namely Chancellor Mark Hill, Mr. Anthony Jeremy. Revd. Gregory Cameron. Mr. Javier Garcia Oliva, Ms. Joanna Nicholson, and Mr. David Lambert as well as to many others including Revd Dr Robert Ombres OP and Professors David Ford and Dan Hardy.

2 Much of the legal evidence employed in this study is derived from Doe, N.. Canon Law in the Anglican Communion (Oxford, 1998): this book does not. however, address many of the specific questions raised by this paper. Needless to say, some of the legal provisions discussed in the book, based on a study carried out in 1996 and 1997, may now be out of date.

3 Uniquely in the Anglican Communion, in England, the canon law of the Church of England is treated as part of the law of the land, by virtue of the established position of the church: see Hill, M.. Ecclesiastical Law (2nd edn. Oxford. 2001) ch. 1: for other Anglican churches, see Doe, N.. Canon Law in the Anglican Communion (Oxford, 1998) ch. 1.

4 National, regional or provincial churches each have their own national law. regional law or provincial law. These laws are usually located in three distinct sources: a constitution, a code of canons, and a miscellany of other regulatory instruments (such as regulations, rules, decrees, or acts). In addition, Many churches have diocesan law, similarly in the form of a constitution and a code of canons. These are all specific bodies of law, and canon law signifies (narrowly) a church's code of canons: the constitution contains constitutional law, the code of canons contains canon law, and so on.

5 Eg the Church of the Province of Southern Africa has a constitution, a code of canons, and collections of other instruments (such as acts of the provincial synod). but the Scottish Episcopal Church has only a code of canons (containing the church's constitution) which are supplemented by resolutions of its synod.

6 For canon law as the whole body of formal law applicable to a church. see eg Briden, T. and Hanson, B. (eds). Moore's Introduction to English Canon Law (3rd edn., London. 1992) ch.1.

7 In other words, canon law. in the narrow sense, may not be recognised in the experience of some churches as a regulatory authority or instrument – regulation operates in another guise.

8 Canon law in this wide sense might also include the Anglican common law and the canonical tradition: see below. Part II.B.

9 See eg Papua New Guinea. Diocese of Port Moresby, canon 10(3): ‘Bishop's Guidelines’.

10 These by definition do not bind but are commonly treated as if they bind: see eg Doe, N., The Legal Framework of the Church of England (Oxford, 1996) 17ff; and Doe, N., ‘Ecclesiastical quasi-legislation’, in Doe, N., Hill, M. and Ombres, R. (eds). English Canon Law (Cardiff. 1998) 93.

11 Tradition, doctrine and church teaching are distinguished from canon law, though they function as sources of canon law, and are used as such in the legislative process: see below Part I.

12 It would be instructive to determine which canon laws, for Anglicans, are representations of divine law.

13 In Roman Catholic canon law, particular provisions in the Code of Canon Law (1983) are not uncommonly presented explicitly as being based on divine law, and, eg, civil law applies to the church unless contrary to divine law (canon 22); customary law in conflict with divine law is void (canon 24).

14 For the juristic role of the Word of God, see Doe, N., The Legal Framework of the Church of England (Oxford, 1996) ch. 2; Thirty-Nine Articles, Art. 20: ‘it is not lawful for the Church to ordain any thing which is contrary to God's Word written’.

15 However, in Australia, the appellate tribunal may declare legislation of General Synod to be void if inconsistent with the Fundamental Declarations of the church (Const. V.29): this arrangement is rare. In the experiences of some Anglican churches, it might be that Holy Scripture and tradition are used directly as binding normative sources in decision-making. For other Anglicans, these are sources of canon law: they are not juridically binding for particular cases until incorporated in formal church law; see also, Hill, M., ‘Gospel and Order’. 4 Ecc LJ (1996) 659.

16 See eg Urresti, T., ‘Canon law and Theology: two different sciences’. 8(3) Concilium (1967) 10.

17 Briden, T. and Hanson, B. (eds). Moore's Introduction to English Canon Law (1992) 1.

18 See Doe, N.. ‘Towards a Critique of the Role of Theology in English Ecclesiastical and Canon Law’, 2 Ecc LJ (19901992) 328.

19 Ombres, R.. ‘Ecclesiology, Ecumenism and Canon Law’, in Doe, N., Hill, M. and Ombres, R. (eds), English Canon Law (Cardiff, 1998) 48.

20 ACC—1979. 6: Ontario: Guidelines for Provincial Constitutions: a constitution ‘should allow on the one hand for the operation of the Holy Spirit in continuous growth, development and adjustment to changing ecclesiastical and social environments, while on the other hand providing a basis of stability from which to make appropriate alterations from time to time’.

21 Law provides and empowers institutions for governance: it enables episcopal leadership and empowers the laity to participate in church government; it distributes functions and responsibilities among clergy and laity; it confers rights of access to the ministrations of the church; it secures the stewardship of property.

22 See The Canon Law of the Church of England, Report of Archbishops Commission (London, 1947) 4.

23 Canon law provides good order to enable the church to fulfil its mission: see Doe, N.. The Legal Framework of the Church of England (Oxford, 1996) 43f; also canon law assists the church to meet the demands of civil law applicable to it.

24 For canon law and communion, as reciprocity among the faithful within a church, see Lejeune, M., ‘Demythologising Canon Law’, 21 Studia Canonica (1987) 5.

25 LC 1930. Res. 49: the Communion is ‘a fellowship within the One Holy Catholic and Apostolic Church, of those duly constituted dioceses, provinces or regional Churches in communion with the See of Canterbury’; there are also of course obvious historical links between churches.

26 LC 1998. Res. III.8; see also LC 1998. Res. III.1

27 There may be moral duties to comply with these instruments, at this level, but no legal duties: the question of moral sanctions is separate.

28 LC 1998. Res. II.6: this ‘reaffirms the primary authority of the Scriptures’. See also the Chicago-Lambeth Quadrilateral.

29 This aspect of the moral order is summed up in statements of the Lambeth Conference: churches are bound together ‘not by a central legislative and executive authority, but by a mutual loyalty sustained through the common counsel of the bishops in conference’ (LC 1930, Res. 48.49): of the institutional authorities, the ACC alone has a legal structure (a constitution) with defined functions.

30 ‘Since the Anglican Communion does not have a central body with canonical authority, the list [of Anglican churches] is authorised by the Archbishop of Canterbury and the Anglican Primates’ (Handbook. 1994. p. 19).

31 Virginia Report, ch. 4.

32 LC 1930. Res. 48.49.

33 LC 1930. Res. 49.

34 LC 1998. Res. III.2. At the global level, the principle is obviously perceived as having a theological dimension, but its status at this level, as issuing from the moral authority of the Lambeth Conference, is moral, not legal. At the local ecclesial level, when expressed in the law of a particular church, the principle has a legal status within that church, where it also functions as a political fact (see below).

35 LC Report 1988. p. 298: ‘in the Communion as a whole, the instruments of Communion or the organs of consultation provide appropriate checks and balances for each other… [we] seem to have a view of dispersed authority which relates not only to the sources of authority but also to its exercise’.

36 LC 1978. Recommendation 1. This is one of the ‘principles of church order’.

37 LC 1897, Res. 24; LC 1968. Res. 63.

38 LC 1878, Rec. 1.

39 LC 1930, Res. 47.

40 LC 1998, Res. III.3.

41 LC 1998, Res. III.22.

42 The problem areas include: the blessing of same sex partnerships; ordination and homosexuality; coordinate episcopal jurisdiction; the extra-territorial exercise of episcopal jurisdiction: lay eucharistic presidency: the recognition of ministry; female bishops and priests: and perhaps polygamy.

43 For analysis of the role of culture at the Lambeth Conference 1998. see Gibson, P., Discerning the Word (Toronto, 2000).

44 Inter-church conflict may be caused in part by the very existence of these two orders. See also Thomas, P.H.E., ‘Some Principles of Anglican Authority: an Investigation of Constitutional Documents in the Anglican Communion’, in Four Documents on Authority in the Anglican Communion, from the Anglican Primates' Meeting. Washington, DC. 1981. 18: ‘The relationship between the local and the universal church is one of the enduring problems of ecclesiology’.

45 More precisely, the exercise of autonomy means the exercise of powers by ecclesiastical authorities, legislative, executive and sometimes judicial.

46 The proposals contained in Gomez, D.W. and Sinclair, M.W. (eds). To Mend the Net: Anglican Faith and Order for Renewed Mission (Carrollton, Texas, 2001). it would seem, suggest the reverse, the translation of the juridical order into the moral order.

47 For fundamental Anglican canon law, see below.

48 It might be that the approach of the secular State (and its law) to practising homosexuality may also condition ecclesiastical approaches of the particular church in that State.

49 Stanton (Bishop of Dallas) v Righter (1996): see also ECUSA, Cans. III.4.1: ‘N o one shall be denied access to the selection process for ordination… because of…sexual orientation’.

50 Presumably, listing practising homosexuality in canon law as a bar to ordination would prevent bishops from ordaining practising homosexuals. In some churches the law expressly provides that divorce is an impediment to ordination, but the law also provides a system of dispensation from this general rule: see eg England, canon C 4. paras 3. 3A.

51 In turn, the very silence of the laws on this subject may itself be a contribution to conflict.

52 It may, however, be a canonical conflict in the widest sense of the term ‘canon law’: see above.

53 LC 1998. Res. 1.10: ‘This Conference… (e) cannot advise…ordaining those involved in same gender unions’.

54 See eg West Indies, canon 8: episcopal declaration: I‘will respect and maintain the spiritual rights and privileges of all Churches in the Anglican Communion’. See also ECUSA. Const. VI. 1: ‘The House of Bishops may establish a Mission in any area not included within the boundaries of any Diocese of this Church or of any Church in communion with this Church, and elect or appoint a Bishop therefor’.

55 See eg Rwanda. Const. Arts. 35, 36: the constitution provides only for the election and consecration of diocesan bishops, the election conforming to the diocesan constitution.

56 See eg West Indies, canon 9.2.

57 The Anglican experience might be closer to that of autocephalous Orthodox churches, regulated by their individual canonical systems: see Erikson, J. H.. The Challenge of Our Past: Studies in Orthodox Canon Law and Church History (New York, 1991) 91.

58 The closest parallel may be that of the Commonwealth.

59 See eg Starke, J. G., An Introduction to International Law (9th edn.) (London, 1984). However, states are sovereign, churches are not.

60 I am very grateful to the Revd Gregory Cameron for suggesting the terms ‘centripetal’ and ‘centrifugal’ as tools to classify these laws.

61 ECUSA. Const. Preamble.

62 New Zealand, canons G.XIII.6.

63 Canada. Declaration of Principles. Solemn Declaration, 1.

64 Ireland. Const. Preamble and Declaration. Ill: ‘and with all other Christian Churches agreeing in the principles of this Declaration’.

65 Venezuela. Const. Art. 1: ‘The Anglican Church in Venezuela is an ecclesiastical jurisdiction which forms an indissoluble part of the Anglican Communion’.

66 Scottish Episcopal Church, canon 15: ‘The Scottish Episcopal Church recognises as in full communion with itself the Churches of the Anglican Communion’. For the list, see the Schedule to the canon.

67 Definition of the Communion is usually left to catechetical documents: see eg New Zealand, Prayer Book 1989, 936.

68 Chile, canon A7.

69 See eg South East Asia, Const. Preamble.

70 See eg South East Asia, Declarations, 6; Central Africa, Fundamental Declarations, VI.

71 Korea. Fundamental Declaration of Faith and Rites: ‘We believe that for the unity of Christ's Church we must enter into co-operation with all churches on the basis of our faith and practice as a member Church of the Anglican Communion’.

72 For entrenchment, see eg Australia, Const. XI.66.

73 Central Africa. Fundamental Declarations. VIII. and canon 33.1–2.

74 Southern Cone. Const. Art. 6.4.

75 Southern Africa. Const. Art. VI.

76 Eg for incorporation of LC 1948, Res, 37. on duties of church membership, see England. Act of Convocation. 1953–1954. 173.

77 West Indies, Cans. 8.

78 Rwanda, Const. Art. 9.

79 ECUSA, canons 1.15.1,7.

80 Southern Africa, canon 4(1).

81 Central Africa, canon 3: the archbishop must act in conjunction with two other bishops of the Anglican Communion nominated by the college.

82 See eg Central Africa, canon 3.5.

83 See eg England, the Overseas and Other Clergy (Ministry and Ordination) Measure 1967; recognition is in the keeping of the archbishops. See also canon C 8.

84 West Indies, canon 8. This incorporates LC 1897, Res. 9.

85 Sudan, Const. Art. 2: among the Metropolitans: South East Asia, Const. Fundamental Declarations. 2: among the Primates.

86 Portugal (Lusitanian Catholic Apostolic and Evangelical Church). Const. Preamble. 7.

87 See Doe, N., Canon Law in the Anglican Conumunion (Oxford, 1998) ch. 7.

88 Melanesia, Const. Art. 1. A: ‘The Church of this Province has no right to alter or depart from these standards, but has the right to make alterations in its forms of worship and discipline, so long as these are agreeable to Holy Scripture and other standards of faith as the Anglican Communion has received them’.

89 Rwanda, Const. Art. 6.

90 See eg West Indies, Declaration of Fundamental Principles, (d)–(e): ‘We disclaim for ourselves the right of altering any … of the standards of Faith and Doctrine’.

91 See Doe, N., Canon Law in the Anglican Communion (Oxford, 1998) 204208. See also Fox, J. (ed). Render Unto Caesar: Church Property in Roman Catholic and Anglican Canon Law (Rome, 2000).

92 Central Africa, Const. Art. V: the archbishop is to act with two other bishops (one nominated by the bishop making the submission and the other by the Episcopal Synod): these must ‘determine the matter in accordance with the formularies and doctrinal teaching of the Church of England, and their decision shall be final’.

93 Uganda, Const. Art. II; Indian Ocean, Const. Art. 7(iii).

94 South East Asia, Const. Fundamental Declarations, 4, 5, 6: also, ‘whilst the Province is a fully autonomous part of the Anglican Communion, it shall nevertheless give due weight to the teaching and traditions of the Communion in the deliberations and decisions of its own ecclesiastical tribunals’.

95 Southern Africa, canon 41 (Of Appeals).

96 Central Africa, Const. Art. 5.

97 South East Asia, Fundamental Declarations, 4: the Provincial Synod may consult in cases concerning ‘adherence to…the principles of worship’ the Archbishop of Canterbury or the Primates of the Anglican Communion.

98 Uganda. Const. Art. 3(i).

99 This is as a result of eg LC 1978, Res. 12; LC 1988, Res. 18.

100 Paradoxically, when all neutral provisions are accumulated, the collective effect is an abundance of shared principles which, in turn, indicate the common fundamental Anglican canon law: see below.

101 See Doe, N., Canon Law in the Anglican Communion (Oxford, 1998) ch. 11.

102 Ecumenism is, of course, sometimes treated by resolutions of the Lambeth Conference: see ibid., 355.

103 South India. Const. II.2.

104 Jerusalem and the Middle East, Const. Art. 5.

105 South Africa, Resolution of Permanent Force of the Provincial Synod. 1 (1975).

106 Korea. Fundamental Declaration of Faith and Rites.

107 England, canon A 8.

108 Portugal, canon X.

109 Doe, N.. Canon Law in the Anglican Communion (Oxford, 1998) 356f. Provisions for constitutional union and, increasingly, for Local Ecumenical Projects are features of Anglican laws.

110 Doe, 360f.

111 And, of course, the agreement will bind the non-Anglican church when incorporated in its regulatory system. Incidentally, the system is similar to that in the secular sphere of inter-State treaties being incorporated in the municipal law of states which are party to those treaties: see above.

112 For implementation of the Porvoo Declaration, for example, see Wales, Canon 28–9–95. It would seem that a concordat of communion between an Anglican church and a non-Anglican church would not also effect communion between that non-Anglican church and other Anglican churches unless and until incorporated in their canonical systems.

113 The canon in Wales establishing communion between the Church in Wales and, among others, the Spanish Reformed Episcopal Church (a member of the Anglican Communion) is rare: canon 29–9–1966. Also covenants exist between ECUSA and, eg, the Anglican church in Mexico and the Philippines (with regard to mission and resources).

114 The robust way in which autonomy is expressed in the canon law of a particular church, and the exercise of that autonomy, generate the possibility of separation of that church from both the moral order of the Anglican Communion and from other Anglican churches.

115 That is, as national, regional, provincial or extra-provincial churches.

116 Melanesia, Const. Art. 2.

117 North India, Const. I. IV.4: ‘The Church of North India shall be an autonomous Church and free from any control, legal or otherwise, of any Church or Society external to itself’.

118 For example, deposition of a priest in one Anglican church does not, as a matter of law, bind in another Anglican church: see eg England, the Clerical Disabilities Act 1870.

119 Korea, Const. Preface: ‘in a spirit of self-reliance, self-support and self-sustainment, the Anglican Church of Korea becomes independent and promulgates this new Constitution and Canons’.

120 Sometimes the concepts of autonomy and belonging to the global communion are juxtaposed: typically, ‘the Province is a fully autonomous part of the Anglican Communion’: South East Asia, Const. Fundamental Declarations, 5.

121 It is in line, of course, with understandings of the Lambeth Conference about the very nature of Anglican churches: see above.

122 England. Priests (Ordination of Women) Measure 1993, s 1(2): ‘Nothing in this Measure shall make it lawful for a woman to be consecrated to the office of bishop’; Ireland. Const. IX.22.

123 Korea, canon 16; compare Australia. Diocese of Sydney, Preaching and Administration of Holy Communion by Lay Persons and Deacons Ordinance 1999.

124 Nigeria, canon XI(e): deposition is ‘permanent inhibition’.

125 For reversibility, see eg Wales, canon 19–4–1990, para. 5.

126 Compare Scotland, canon 6.1 (duty), and Southern Africa, canon 39 (right).

127 Compare Wales, Const. 1.2 and England, Bishop of Exeter v Marshall (1868) LR 3 HL 17.

128 See also Part II.B. 1 below.

129 Once more, the exact relationship between such provisions is often difficult to ascertain. Such apparent dissonances between canonical systems beg the question: when do canonical differences become conflicts of laws? Such provisions are in conflict in the abstract. Real conflict occurs between two inconsistent provisions at the point of application to a particular case. When the opposing rules are in different autonomous systems, there is no real conflict. Conflict arises when they are applied outside their respective systems to a common problem, for example when they are applied in the single system of the moral order of global communion. However, rules are equally valid when they enter the moral order (as they are valid juridically within their respective systems), but their validity may be questioned under the moral order when tested against the Anglican instruments of faith.

130 Setien, J., ‘Tension in the Church’, 8(5) Concilium (1969) 35.

131 See Doe, N., Canon Law in the Anglican Communion (Oxford, 1998) ch. 1. Potential disagreement over executive initiatives is often achieved by rules about consultation. But laws of churches do not make express provision for consideration of objections from other Anglican churches to legislative or executive initiatives within them.

132 They range from the exercise of systems of administrative hierarchical recourse (when it is sometimes claimed that canonical discretions are misused), to visitatorial powers, to quasi-judicial appeal systems, and, as a last resort, to full judicial determination in tribunals and courts: Doe, ch. 3.

133 In England and Wales, provision exists for alternative episcopal oversight for opponents to women priests; for eg England, see Act of Synod 1994.

134 For England, over the legislation concerning the ordination of women as priests, see eg R v Ecclesiastical Committee of Both Houses of Parliament, ex parte The Church Society (1994) 6 Admin LR 670, CA. For other examples, see generally Doe, N., Canon Law in the Anglican Communion (Oxford, 1998) xix–xxv: many of these cases originated in disputes arising from the effects and application of church law.

135 In short, excessively robust, weak or unclear canon law frustrates and even marginalises those who consider their rights as neither respected nor protected. Discriminatory and inflexible canon law marginalises minorities within churches. Canonical powers may be abused or misused. Canon law institutionalises tensions within churches. But canon law can also be remedial—it can mend divisions by a sensitive distribution and enforcement of rights and duties. Provisions in laws which forbid discrimination (eg on grounds of race) may represent best practice: see eg Tanzania, Const. II.5, or ECUSA. Cans. 1.17.5.

136 Thomas, P.H.E., ‘Some Principles of Anglican Authority’ in Four Documents on Authority in the Anglican Communion from the Anglican Primates' Meeting, Washington, DC, 1981, 18.In an introductory survey of constitutions, the author was ‘impressed by the measure of agreement and the flexibility of faith which they display. It seems to me that a comparative study of this material could reveal a distinct pattern of authority and thereby encourage a clearer understanding of Anglican self-consciousness today’.

137 In the common law tradition, of course, classically the unwritten common law is induced from judicial decisions, among other sources.

138 The idea is an old one for Anglicans: see eg Helmholz, R., ‘Richard Hooker and the European Ius Commune’, 6 Ecc L J (2001) 4.

139 For the difficulties of induction and the formulation of its general principles, see Doe, N.. Canon Law in the Anglican Communion (Oxford, 1998) 374375. Sometimes there is unanimity, sometimes a majoritarian approach has to be used to induce a principle, sometimes principles are induced from the silence of laws.

140 Whether a proposition is a common principle may be established by reversing that proposition and asking whether the reversed form is part of Anglican polity; for example, the unacceptability of the proposition that ‘diocesan bishops should NOT be elected’, would suggest that the proposition ‘diocesan bishops should be elected’ is a principle of Anglican common law.

141 Some are clearly fundamental, whilst others relate to the detail of church life.

142 It is only in the conditions under which law-making power may be exercised, and the composition of legislatures, that diversity is found: see Doe, chs. 1 and 2.

143 Bishops, clergy and laity collectively possess the power of governance: compare the Roman Catholic Code of Canon Law (1983) canon 129: only clergy possess the power of governance.

144 Legislative, executive, quasi-judicial and judicial powers, including episcopal powers, must be exercised in accordance with law; the rule of law is a fundamental of all legal systems, civil and ecclesiastical.

145 See Doe, ch. 3: this is something shared, of course, with secular legal systems.

146 Doe. chs. 4, 5 and 6.

147 Doe, chs. 7 and 8.

148 Doe, chs. 9 and 10.

149 Doe, ch. 11: churches are united in that oversight of property belongs to the central church assembly, but that ownership and management at the lower levels of trie church are vested in local ecclesiastical authorities, and that church buildings cannot be used for profane purposes.

150 It is not a general principle that: episcopal visitation is a duty (in some churches it is. in others it is discretionary); courts have jurisdiction over the laity (in some they do, in others they do not); decisions of church courts are creative of law (in a small minority they are); the rights and duties of the laity must be defined (in a small number of churches they are): the laity must assent to the canonical doctrines.

151 See eg Rodes, R. E., ‘The Canon Law as a Legal System—Function, Obligation and Sanction’. Natural Law Forum (1962) 45.

152 Roman Catholic Code of Canon Law (1983), canon 19.

153 Eastern Catholic Churches (1990), canon 1501.

154 Southern Africa, canon 50.

155 England, Submission of the Clergy Act 1534; Wales, Const.IX.36; compare Australia, canon 11 1992,3(1): ‘all canon law of the Churh of England made prior to the Canons of 1603… shall have no operation or effect in a diocese’ however 4: this lists the lists the canons of 1603 which have no effect in a diocese but a right is reserved to a diocese to adopt them.

156 Roman Catholic Code of Canon Law (1983), canon 1752.

157 See above.

158 See eg Roman Catholic Code of Canon Law (1983), canon 223, para 1.

159 ECUSA, canons 1.17.6; North India, Const. II. V. 6; Roman Catholic Code of Canon Law (1983). canon 19. See generally Coughlin, J. J., ‘Canonical Equity’, 30 Studia Canonica, (1996), 405.

160 Roman Catholic Code of Canon Law (1983), canon 27.

161 Liber Sextus, 6, and Roman Catholic Code of Canon Law (1983), canon 1095 3.

162 Roman Catholic Code of Canon Law (1983), canon 16. In most Anglican churches, the formal law does not specify that judicial decisions create law (England is a notable exception).

163 See eg Doe, N., ‘The Principles of Canon Law: A Focus of Legal Unity in Anglican-Roman Catholic relations’, 5 Ecc LJ (1999) 221.

164 For the work of the Colloquium of Anglican and Roman Catholic Canon Lawyers, set up in Rome in 1999, see Hill, M.. ‘Colloquium of Anglican and Roman Catholic Canon Lawyers’. 6 Ecc LJ (2000)61.

165 If Anglican churches can do this with non-Anglican churches. why cannot Anglican churches enter concordats with all other Anglican churches, and implement them in their own laws?

166 For example, the incorporation in the laws of all churches of a simple rule that a bishop in one church cannot minister in another churhc without the consent of the appropriate authority of the host church might have prevented the current Singapore-ECUSA problem.

167 Eg Communion in Mission (2000), issued by a meeting of Anglican and Roman Catholic bishops, highlights differnces concerning ‘the understanding of authority in the church, including the way it is exercised’; the proposal outlined below may be in line with the call, in this joint document, for ’translating the degree of spiritual communion that has been achieved into visible and practical outcomes’.

168 See The Official Report of the Lambeth Conference 1998Pennsylvania,1999 15.

169 LC 1998, Res. III. 8; Virginia Report, 5.20.

170 ACC—1979, 6 Ontario: these Guidelines for Provincial Constitutions suggest that, inter alia, constitutions should include criteria by which a province ‘may be validly accepted or remain part’ of the Anglican Communion, relationships with other provinces of the Communion, and relationships between the province and other churches or communions. The guidelines deal with subjects which should be regulated by a constitution.

171 For example: ‘The Primates wish to affirm the place of Canon Law as one of the many elements of shared life which bind the Churches of the Anglican Communion together, and the importance of the ius commune as a common inheritance which unites the lives of the different Provinces into a corporate discipline. They invite the Provinces of the Anglican Communion to look again at the way in which the Canon Law draws the lives of the different Provinces into a shared experience of Christian discipleship and discipline. They look for a renewal of the Canon Law which will encourage and maintain the mutual respect and fellowship of the Churches of the Anglican Communion, whilst marking the boundaries of an authentically Anglican and yet faithful interpretation of the Gospel”.

172 Each Primate could commend that the central legislature of the particular church acknowledges the existence of the common law of the Anglican Communion and undertakes to have regard to and respect it. This would be a short-term measure, and could be achieved in churches by the introduction of a single clause in their law to this effect. For example, a typical clause might state: ‘The Constitution and Canon Law of the Anglican Church of X shall be interpreted at all times in the context of the ius commune received in common by the Churches of the Anglican Communion, and any decision made under and concerning the meaning and application of the Constitution and Canon Law shall have due regard to principles embodied in the ius commune’. I am grateful to the Revd Gregory Cameron for these suggestions.

173 These might include a study of Anglican, Lutheran, Roman Catholic, Eastern Catholic, and Orthodox models, in which the reconciliation of the demands of particular churches and those of the universal church is a persistent theme.

174 Such as the treatment of inter-state relations and conflict in public international law, and the structure of international treaties (the UN Declaration of Human Rights, the European Convention on Human Rights, or the European Charter of Fundamental Rights, and the ways in which these are incorporated in the municipal law of States).

175 The statement would be of the common law of the Anglican Communion (not the whole of it but those elements which deal with inter-Anglican relations); the document (like an ecumenical concordat) would of itself have no direct force within particular churches (coming as it would from an institution with moral authority) unless and until incorporated in their legal systems; its terms would reflect the episcopal, pastoral, eucharistic and ecumenical nature of canon law, as well (perhaps) as the notion of the conscience of a church; the principles would be in the form of general norms and permissible exceptions—in short, a definition of freedom and self-restraint, based on the current principles of Anglican canon law induced from the coincidences shared by existing canonical systems. Part I might deal with a definition of Communion and of membership; Part II with the principles of Anglican polity and inter-church relations; and Part III with the resolution of inter-church conflict.

176 The Primates would be best placed to stimulate reception and incorporation as they commonly have a jurisdiction of leadership, and the right to initiate new legislation, under the existing laws of their own churches.

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