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The Commom Law of the Anglican Communion

  • Norman Doe (a1)

The aim of this short paper is to examine whether and how canon law might be acknowledged as one of the instruments of Anglican unity. First, the study proposes that there are principles of canon law recognised by churches. These are rooted in the canonical tradition shared by churches of the catholic and apostolic tradition. Secondly, the following proposes that the profound similarities between Anglican legal systems indicate, as a matter of descriptive fact, what Anglicans share in common juridically. Together, the principles of canon law and the similarities between Anglican legal systems represent the common law of the Anglican Communion. Thirdly, the study addresses some methodological issues raised in ascertaining and formulating the canonical principles of the Anglican his commune. Finally, it suggests some reasons and justifications for an acknowledgement of the Anglican common law.

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1 This paper was delivered at the Anglican Communion Legal Advisers' Consultation which took place in Canterbury 6–13 March 2002. For John Rees' report of the Consultation, see (2002) 6 Ecc LJ 399–401. The Consultation was held as a result of a decision at the meeting of the Primates of the Anglican Communion at Kanuga. North Carolina, USA, 6 March 2001, at which the Primates discussed a paper delivered at that meeting and reproduced in this Journal: see N. Doe, ‘Canon Law and Communion’. (2002) 6 Ecc LJ 241–263.

2 The Virginia Report of the Inter-Anglican Theological and Doctrinal Commission (1997) identified as the four instruments of Anglican unity: the Archbishop of Canterbury, the Lambeth Conference, the Primates' Meeting and the Anglican Consultative Council.

3 West Indies, Const. Art. 6.2(1).

4 Southern Africa, Canon 50.

5 Central Africa, Canon 32.1.

6 Nigeria, Const. Art. XIX. V.

7 See N. Doe, ‘The principles of canon law: a focus of legal unity in Anglican and Roman Catholic relations’, (1998) 5 Ecc LJ 221.

8 Dworkin, R., ‘Is law a SYSTEM of rules?’, in Dworkin, R. (ed.), The Philosophy of Law (Oxford, 1977) 38.

9 See generally The Canon Law: Letter and Spirit (1993) 77.

10 England, Submission of the Clergy Act 1534; Wales, Const. XI.47; compare Australia. Can. 11 1992. 3(1): ‘all canon law of the Church of England made prior to the Canons of 1603… shall have no operation or effect in a diocese’; however, 4: this lists the canons of 1603 which have no effect in a diocese but a right is reserved to a diocese to adopt them.

11 Roman Catholic Code (1983) Canon 27.

12 England, Canon A 8.

13 England, Canon B 22.

14 Korea, Canons 42–45.

15 See eg Roman Catholic Code (1983), Canon 221.

16 See eg Australia, Canon 18 1992.

17 Kenya, Const. Art. 32.9.

18 See Doe, N., Canon Law in the Anglican Communion (Oxford, 1998) Ch. 1.

19 England, Care of Churches and Ecclesiastical Jurisdiction Measure 1991. s. 1: ‘General Principle … Any person or body carrying out functions of care and conservation under this Measure or under any other enactment or rule of law relating to churches shall have due regard to the role of a church as a centre of worship and mission’.

20 See N. Doe, ‘The principles of canon law’, (1999) 5 Ecc LJ 229.

21 West Indies, Const. Arts. 3,4.

22 R. Ombres, ‘Faith, doctrine and Roman Catholic canon law’, (1989) 1 Ecc LJ 33.

23 Orsy, L., Theology and Canon Law (Collegeville, Minnesota, 1992) 77.

24 See Gauthier, A., Roman Law and Its Contribution to the Development of Canon Law (Ottawa, 1996).

25 Wales, Const. VI.22.

26 Constitution (1930), Declaration 11: ‘Of the authority of the principles and customs set out in the preceding Declarations’.

27 For this sort of approach, see eg Rodes, R. E., ‘The canon law as a legal SYSTEM—function, obligation and sanction’, Natural Law Forum (1962) 45.

28 See Walker, , Oxford Companion to Law (Oxford, 1980) 253. ‘Common Law SYSTEMs’ (eg UK, USA).

29 Thomas, P., ‘A family affair: the pattern of constitutional authority in the Anglican Communion’, in Sykes, S. W. (ed), Authority in the Anglican Communion (Toronto, 1987) 119: 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’.

30 See N. Doe, Canon Law in the Anglican Communion, 84.

31 N. Doe, Canon Law in the Anglican Communion, 166; Lambeth Conference 1948, Res. 37.

32 See eg Melanesia, Canons, A.3-A-D: Ireland, Const. IX. 28(1); see also the Canons Ecclesiastical 1603, Canon 61.

33 See N. Doe, Canon Law in the Anglican Communion, 266.

34 Matt. 18: 17; 1 Cor 5; 1–5.

35 Thirty-Nine Articles of Religion. Art. 33.

36 See eg Canons Ecclesiastical 1603, Canon 26.

37 See eg Wales, Book of Common Prayer 1984; here the provision itself is cast as a rule: ‘If they do not heed the warning [of a priest about their conduct], the Priest shall report the matter to the Bishop and proceed as he directs’.

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

39 See eg Uganda, Const. Art. 3: ‘In Conformity with established Christian doctrine, the Church of this Province shall proclaim and hold that all people have equal value. rights and dignity in the sight of God, and, while mindful to provide for the special needs of different people committed to its charge, shall not allow discrimination in the membership amd government of the Church solely on the grounds of colour. sex. tribe or region’.

40 For developments in New Zealand, Australia and England, see N. Doe, Canon Law in the Anglican Communion, 264ff.

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

42 For the difficulties of induction and the formulation of its general principles see Doe, N., Canon Law in the Anglican Communion (Oxford, 1998) 374, 375: 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.

43 There may also be parallels between the Anglican common law and international law.

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

45 It is only in the conditions under which law-making power may be exercised. and the composition of legislatures, that diversity is found: see N. Doe, Canon Law in the Anglican Communion, Chs. 1 and 2.

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

47 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.

48 See N. Doe, Canon Law in the Anglican Communion, Ch. 3: this is something shared, of course, with secular legal SYSTEMs.

49 Doe, Chs. 4–6.

50 Doe. Chs. 7 and 8.

51 Doe, Chs. 9 and 10.

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

53 It is not 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.

54 Hankey, W., ‘Canon law’, in Sykes, S.W. and Booty, J. (eds), The Study of Anglicanism (London, 1988) 200.

55 For the evidence from actual laws, see N. Doe Canon Law in the Anglican Communion, 109f.

56 Doe, 145.

57 Doe, 120ff.

58 See Book of Common Prayer 1662, The Ordering of Priests: ‘Will you reverently obey your Ordinary … and submitting yourselves to their godly judgments?’ This is found in the vast majority of churches; see eg Australia, Canon 15, 1998: ‘An oath or affirmation of canonical obedience shall be taken by a member of the clergy on … ordination … first licensing … consecration as an assistant bishop’.

59 See N. Doe, Canon Law in the Anglican Communion, 144.

60 See eg England, Canons Ecclesiastical 1603, Canon 113.

61 For an example of this, see note 39 above.

62 Postscript: The Anglican Communion Legal Advisers Consultation (6–13 March 2002) tested the hypothesis proposed in this paper, and it agreed on 44 principles induced from actual legal SYSTEMs. The Consultation concluded: '1. There are principles of canon law common to the Churches within the Anglican Communion. 2. Their existence can be factually established. 3. Each Anglican Province or Church contributes through its own legal SYSTEM to the principles of canon law common within the Anglican Communion. 4. These principles have a strong persuasive authority and are fundamental to the self-understanding of each of the Churches of the Communion represented amongst us. 5. These principles have a living force, and contain in themselves the possibility for further development. 6. The existence of these principles both demonstrates unity and promotes unity within the Anglican Communion. See the report of the Consultation at (2002) 6 Ecc LJ 399. In turn, following a report on the Consultation to the Primates' Meeting at Canterbury in April 2002, ‘The Primates recognized 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” … 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’. On the recommendation of the Primates' Meeting, the Anglican Consultative Council, in September 2002, approved the establishment of an Anglican Communion Legal Advisers' Network: its tasks will be to produce a statement of the principles of canon law common to the churches, and to examine shared problems and possible solutions.

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Ecclesiastical Law Journal
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