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The Principles of Canon Law: A Focus of Legal Unity in Anglican-Roman Catholic Relations

  • Norman Doe (a1)
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1 Ferme, B., ‘William Lyndwood and the Provinciate: Canon Law in an undivided Western Church’. (1997) 4 Ecc LJ 615 at 628. See also Ferme, B.. Canon Law in Medieval England: A Study of William Lyndwood's Provinciate with particular reference to Testamentary Law (Rome. 1996). I am extremely grateful to Robert Ombres. Mark Hill and Heather Payne for reading through, and commenting constructively on. drafts of this paper.

2 Ombres, R.. ‘Ecclesiology. ecumenism and canon law’ in Doe, N.. Hill, M. and Ombres, R. (eds.). English Canon Law (Cardiff. 1998). p. 48.

3 Constitution and Canons (1994). Canon 50. For other examples, see Doe, N.. Canon Law in the Anglican Communion (Oxford. 1998). p. 22. n 80.

4 Codex luris Canonici (1983). canon 19: ‘generalibus iuris principiis cum aequitate canonica servatis’ (this applies unless it is a penal matter). The same provision was found in the 1917 Code, canon 20.

5 Code of Canons (1990). canon 1501: ‘generalia principia iuris canonici cum aequitate servata’ (this. too. applies unless the matter is penal).

6 See eg the studies in Twining, W. (ed.). Legal Theory ami Common Law (Oxford. 1986).

7 Even for those who consider that ‘common law’ and ‘civil law’ have no independent objective existence, such concepts may be powerful fictions.

8 Coriden, J. A.. An Introduction to Canon Law (London. 1991). p. 4.

9 Walker, . Oxford Companion to Law (Oxford. 1980). p. 175: ‘The body of law constituted by ecclesiastical authority for the organization and government of the Christian Church’.

10 Although across the centuries ‘canon law’ has acquired different meanings, many of the principles referred to in this paper have persisted regardless of ecclesiastical divisions. This shared heritage clearly points to an existence independent of immediate context.

11 The Canon Law of the Church of England: Report of the Archbishops' Commission on Canon Law (1947). p. 41. For appeals to the ius commune by English Civilians following the Reformation, see Helmholz, R. H.. Roman Canon Law in Reformation England (Cambridge. 1990). pp. 124143. For the ius commune generally, see Helmholz, R. H.. The Spirit of Classical Canon Law (University of Georgia Press. 1996).

12 Codex luris Canonici (1983). canon 1752.

13 See also McCreagh v Frearson (1921) 91 LJKB 365. per Shearman J: ‘A “principle” means a general guiding rule, and does not include specific directions, which vary according to the subject matter’.

14 Cotterrell, R.. The Politics of Jurisprudence (London. 1989). p. 170.

15 For the treatment of these as ‘guiding principles’ in domestic law. see eg Turpin, C.. British Government and the Constitution (London, 1985). ch 1.

16 Twining, W. and Miers, D.. How to Do Things with Rules (2nd edn. London. 1982). pp. 138140.

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

18 Raz, J.. ‘Legal principles and the limits of law’. 91 Yale LJ (1971) 823.

19 See. however. Doe, N.. Canon Law in the Anglican Communion (Oxford, 1998). The entire study proceeds on the assumption that principles of Anglican canon law may be deduced from the actual laws of individual churches.

20 Cicognani, A. G.. Canon Law (Maryland. 1934). pp. 622ff: that it refers only to canon law is because: the Code treats only canon law. not civil law: the civil law is not a supplementary source of codified canon law: and ‘the principles of civil law often disagree with those of Canon Law”. However, ‘if one chooses to understand the expression “the general principles of law” as meaning the universal and fundamental principles of law common to both civil and Canon Law. such an opinion should not apparently be rejected, since we may reckon such principles among the general rules of Canon Law. inasmuch as they are common to both, having the same remote origin, namely, the law of nature, and they belong to the natural law rather than to any form of civil law: they are. namely, the common juridical patrimony of all peoples’.

21 Coriden, J. A., Green, T. J. and Heintschel, D. F. (eds.). The Code of Canon Law: A Text and Commentary (New York. 1985). p. 37.

22 Codex luris Canonici (1983). Book I. comprises canons 1 203.

23 The Canon Law: Letter and Spirit (1995). pp. 1819. See also Acts of the Commission for the Revision of the Code. 2 Communicationes (1969). p. 77: ‘the general principles of law. that vast treasure house of laws and jurisprudence accumulated by the Church in the course of centuries’. By ‘jurisprudence’, of course. Roman Catholic canonists mean ‘case law’ rather than ‘legal theory’, its meaning for the common lawyer.

24 Codex Juris Canonici (1983). canon 27.

25 The Canon Law: Letter and Spirit, para 78. For the Roman law origin of the principle, see ibid. n. 2.

26 Revised Canons Ecclesiastical (1969). canon A 8.

27 Codex luris Canonici (1983). canon 1446. para 1.

28 Ibid. canons 1713. 1733.

29 Revised Canons Ecclesiastical (1969). canon B 22. para 2.

30 Principles, of course, may often be re-cast as rules. This is not surprising if principles are understood as the foundation of rules.

31 Briden, T. and Hanson, B. (eds.). Moore's Introduction to English Canon Law (3rd edn. London. 1992). p. 1: ‘The canonist, therefore, can never be simply a lawyer: he must always be in some measure a theologian, and he will frequently require the assistance of historians.’ Compare note 122 below.

32 See generally Doe, N.. ‘Towards a critique of the role of theology in English ecclesiastical and canon law’. Ecc LJ (19901992) 328.

33 See eg Örsy, L.. Theology and Canon Law (Collegeville. Minnesota. 1992). and Urresti, T. ‘Canon law and theology: two different sciences’. 8 (3) Concilium (1967). p. 10.

34 Örsy, . Theology and Canon Law. p. 150.

35 For the various ‘schools’, see ibid. pp. 175 ff.

36 Ombres, R.. ‘Canon law and the mystery of the Church' 62 Irish Theological Quarterly (19661967)’)00.

37 Örsy, . Theology and Canon Law. p. 136.

38 See eg Coriden, J.. An Introduction to Canon Law (London. 1990). pp. 9ff. Scriptural principles shape the whole of a canonical system and provide, needless to say. a common point of contact between Roman Catholics and Anglicans.

39 Örsy, . Canon Law and Theology, p. 133.

40 Canons of the Anglican Church in Korea (1992). canons 42—45.

41 This regulu iuris, appearing as no. 49 in the Liber Sextus of Boniface VIII (1298). is derived from Roman law (Dig 50. 17. 155). and surfaces in Codex luris Canonici (1983) as canon 18. See Gauthier, A.. Roman Law and its Contribution to the Development of Canon Law (Ottawa. 1996). p. 112.

42 Liber Sextus. 6. See also the Codex luris Canonici (1983). canon 1095. 3.

43 Codex luris Canonici (1983). canon 9.

44 Ibid, canon 221. para 3.

45 The existence of neutral principles is not surprising: in much the same way that grace builds on nature in Christianity generally, so too canon law builds on the natural human impulse towards lawmaking, borrowing and adapting human juridical techniques and concepts. I am grateful to Robert Ombres for this insight, among many others.

46 See Doe, N.. Canon Law in the Anglican Communion (Oxford. 1998). This book seeks to elucidate deductively these principles.

47 Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). s 1. See also the Care of Cathedrals Measure 1990 (No 2). s 1.

48 14 Halsbury's Laws of England (4th edn)(1975). para 1310. note 3.

49 St Bololph without Aldgate Vicar and Churchwardens v Parishioners [1892] P 161 at 167. per Tristram Ch: ‘The principle upon which the court holds, that it has jurisdiction to grant such faculties, is. that there is a discretionary power vested in it as to making orders relating to churchyards’.

50 See now the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. s 11(8). under which the chancellor must issue written guidance on what might be classed as de minimis.

51 Re Church Norton Churchyard [1989] Fam 37. sub nom Re Atkins [1989] 1 All ER 14. per Edwards Ch: ‘Notwithstanding these general principles cases occur in which the discretion to grant a faculty should be exercised’.

52 Re St Luke the Evangelist, Maidstone [1995] Fam 1. [1995] 1 All ER 321. Ct of Arches.

53 Re St Mary's. Barnes [1982] 1 All ER 456. [1982] 1 WLR 531. per Moore Ch. Of course, one might ask whether this is a canonical principle at all: see also his use of ‘first principles’ in the reservation case of Bishopwearnlouth (Rector anil Churchwardens) r Adey [1958] 3 All ER 441. sub nom Re St Michael and All Angels. Bishopwearmouth [1958] I WLR 1183. See generally Bride, T. and Ombres, R.. ‘Law. theology and history in the judgments of Chancellor Garth Moore’. 3 Ecc LJ (1994) 223.

54 This was published posthumously in 1630: see Stein, P.. Regulae luris: From Juristic Rules to Legal Maxims (Edinburgh. 1966). p. 171.

55 See eg the Industrial Relations Act 1971 (c 72). s 1(1) (repealed): ‘The provisions of this Act shall have effect for the purpose of promoting good industrial relations in accordance with the following general principles’ (such as the principles of collective bargaining and of free association of workers). See also the Immigration Act 1971 (c 77). s 1 (‘General principles’), and the Courts and Legal Services Act 1990(c41), s 17(1) (‘The statutory objective and the general principle’).

56 E U Treaty, art 215(2): see generally Weatherill, S. and Beaumont, P.. EC Law (London. 1993), pp. 219ff.

57 Handbook of the General Synod of the Anglican Church of Canada (1996). Declaration of Principles. 1 and 7.

58 Constitution of the Anglican Church of Australia. Pt I. ch II. 4.

59 The Virginia Report (1997). ch 5.

60 See eg 29 Studia Canonica (1995) 509. decision of the Apostolic Tribunal of the Roman Rota, coram Burke (2/12/93). at 511: ‘Prudence is called for before laying down juridical principles which would make it impossible for anyone who is a heavy drinker to contract a valid marriage…. Moreover, following the principle solidly supported by jurisprudence that any true incapacity under c. 1095. 3. must be permanent in nature’ (here follows a list of earlier judicial decisions).

61 Woestman, W. H. (ed.). Papal Allocutions to the Roman Rota 1939—1994 (Ottawa. 1994) pp. 18. 20. 120 (for ‘rules of law’).

62 For the Latin text, see Acts of the Commission for the Revision of the Code, 2 Communicationes (1969). p. 77.

63 For an English translation of the text, see Hite, J. and Ward, D.J. (eds.). Readings, Cases and Materials in Canon Law (Collegeville. Minnesota. 1990). pp. 84ff. For the use by Garbett of ‘Seven Guiding Principles’ for the revision of canon law in the Church of England at the time of the Archbishops’ Commission in the 1940s, see Boulton, P. H.. Revision of the Canon Law of the Church of England (L.L.M. Dissertation. University of Wales. Cardiff. 1996). p. 48.

64 If conceived in this sense, it would be an interesting exercise to establish the relationship between these principles and those found in the Anglican Richard Hooker's Laws of Ecclesiastical Polity (1594).

65 If these Revision principles are consistent with Anglican ideas, then, they would be candidates for ‘principles of canon law’.

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

67 Codex luris Canonici (1983). canon 208.

68 Ibid. Book II (‘The People of God’), comprises canons 204–746.

69 See the text and notes 58. 59. above.

70 See the text to note 48 above.

71 Revised Canons Ecclesiastical (1969). canon C 18. para 1.

72 See eg ibid, canons B 43 and B 44. in which principles are not spelt out overtly — the structure of the canons is very detailed and in the form of rules.

73 Re St Mary's. Barnes [1982] 1 All ER 456. [1982] 1 WLR 531: see the text and note 53 above. It is. needless to say. arguable that when an extraneous principle is adopted by an ecclesiastical judge as part of the ratio deci-dendi of a case it becomes part of the law of those churches in which judicial decisions have a law-creative force.

74 Gauthier, A.. Roman Law and its Contribution to the Development of Canon Law (Ottawa. 1996). p. 107. See ibid. p. 1.19. for regulae iuris in the Decretals of Gregory IX (1234). On the other hand, these were included in the collections of the Corpus luris Canonici and may be conceived also as part of law in that sense. For regulae iuris in Roman law. see Stein, P.. Regulae Juris: From Juristie Rules to Legal Maxims (Edinburgh. 1966).

75 Ombres, R.. ‘Faith, doctrine and Roman Catholic canon law’. 1(4) Ecc LJ (1989) 33 at 37: fontes are ‘the lawmakers or authors of law’.

76 Örsy, L.. Theology and Canon Law (Collegeville. Minnesota. 1992). p. 77.

77 Liber Sextus, regula 2. applied in Codex luris Canonici (1983). canon 198.

78 Regulae luris in the Decretals of Gregory IX. 4. Gauthier (see note 74 above) does not include a reference to the 1983 Code.

79 Hite, J. and Ward, D. J. (eds.). Readings. Cases and Materials in Canon Law (Collegeville. Minnesota. 1990).

80 See eg the Church of England's Book of Common Prayer (1662). The Order for the Administration of… Holy Communion: ‘So many as intend to be partakers of the holy Communion shall signify their names to the Curate, at least some time the day before’ (this may. alternatively, be understood as a norm). See also the principle in The Ministry of Baptism to such as are of Riper Years: ‘It is expedient that every person, thus baptized, should be confirmed by the Bishop so soon after his Baptism as conveniently may be: that so he may be admitted to the holy Communion’ (the generality and normative language of this provision suggest that it is a principle having a dimension of weight: but it may be re-cast as a rule, and today finds its place in the Revised Canons Ecclesiastical (1969). canon B 24. para 3). It is equally arguable that, being appended to the Act of Uniformity 1662 (14 Cha 2. c4). such principles are part of the law. Compare the principles found in the Alternative Service Book 1980.

81 Eg the Thirty-nine Articles of Religion of the Church of England, art XX: ‘it is not lawful for the Church to ordain any thing that is contrary to God's Word written’.

82 Principles contained in such documents as the Universal Declaration of Human Rights (1948) may clearly be conceived as written statements of fundamental principles about the dignity of the human person.

83 A related question is who has authority to create or declare the principles of canon law. One occasionally wonders whether principles are merely the constructs of academics.

84 Report of the Commission for the Revision of the 1983 Roman Catholic Code of Canon Law. Hite, J. and Ward, D. J. (eds.). Readings. Cases and Materials in Canon Law (Collegeville. Minnesota. 1990). p. 84.

85 Parochial Church Councils (Powers) Measure 1956 (4 & 5 Eliz 2. No 3). s 2(2)(a) (substituted by the Synodical Government Measure 1969 (No 2). s 6. and amended by the Church of England (Miscellaneous Provisions) Measure 1983 (No 2). s5). This is presented as one of the ‘functions’ of the PCC.

86 Church of England Assembly (Powers) Act 1919 (9 & 10 Geo 5. c 76). s 4.

86 Re Sl Peter. Roydon [1969] 2 All ER 1233. [1969] 1 WLR 1849.

87 In the Church of England, a principle appearing in a synodical Measure would have greater authority than one appearing in ecclesiastical quasi-legislation or in a liturgical book.

88 This is. obviously. a large question, whether principles can change with time. Given the association between canonical principles and theology, the changeability of a proposition may mean, of course, that it was not a principle (but a rule) in the first place.

89 Codex luris Cunonici (1983). canon 1249. For the divine law concept, see also canon 210 (holy life), canon 211 (spreading the gospel), canon 222. para 2 (promoting social justice), and canon 849 (baptism).

90 Ibid, canon 207. para 1.

91 Revised Canons Ecclesiastical (1969). canon B 30. para 1.

92 Ibid, canon A 6

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

94 For an interesting recent discussion of this general area, and the notion of the application in a judicial setting of ‘general principles’ deduced from scripture, see Bash, A.. ‘Ecclesiastical law and the law of God in scripture’. 5 Ecc LJ (1998) 7

95 Cotterrell, R.. The Polities of Jurisprudence (London. 1989). p. 169.

97 Riggs v Palmer 115 NY 506 (1889).

98 19 February 1977. 22 The Pope Speaks (1977) 171: in canon law ‘it is equity which governs the application of norms to concrete cases, with the salvation of souls as the goal. … Equity takes the form of mildness, mercy and pastoral charity and seeks not a rigid application of the law hut the true welfare of the faithful’. See also Paul VI. 8 February 1973: ‘The pastoral nature of church law and canonical equity’. Woestman, W. H. (ed.) Papal Allocutions (1994). p. 115

99 Codex Juris Canonici (1983). canons 87. 88.

100 Ibid, canon 1752.

101 See Doe, N.. The Legal Framework of the Church of England (Oxford, 1996). pp. 4752.

102 For reservation, see Hill, M.. Ecclesiastical Law (London. 1995). pp. 302ff.

103 Re Church Norton Churchyard [1989] Fam 37. sub nom Re Atkins [1989] 1 All ER 14. where legal principles conferring discretion were favoured as against the principles governing the exercise of the faculty jurisdiction.

104 For principles enunciated by the Lambeth Conference, see eg Resolution 9. 1978: ‘We commend the biblical principle of tithing as a guide for normal Christian living’. For the persuasive authority of such resolutions, see Doe, N.. Canon Law in the Anglican Communion (Oxford, 1998). pp. 345ff.

105 Revised Canons Ecclesiastical (1969). canon B 15. para 1. The moral or Christian authority of the provision, for the individual consciences of the laity, is obviously a very different matter: it is arguable that there is a deeper principle that the laity will honour that commitment, and the rule (merely) is that the laity is not bound by the canon.

106 Middleton v Crofts (1736) 2 Atk 650.

107 Codex luris Canonici (1983). canon 898: the faithful have a duty to receive the sacrament frequently: canon 920: the faithful must receive at least once a year.

108 For Anglican churches, see Doe, N.. Canon Law in the Anglican Communion. chs 1. 6.

109 For the idea that Garth Moore ‘believed the basic principles that guide the Church to be unchanging’, see Briden, T. and Ombres, R.. ‘Law. theology and history in the judgments of Chancellor Garth Moore’, 3 Ecc LJ( 1994) 223 at 226.

110 One task of lawyers, of course, may be the production of a unifying language (equivalent to the SI units of science).

111 See eg Vatican II's Unitatis Redintegratio (1964). and Common Declaration by Pope John Paul II and the Archbishop of Canterbury. 29 May 1982.

112 For statements dealing specifically with Anglican-Roman Catholic dialogue, see Resolution 53. 1968: Resolution 33. 1978: and Resolution 8. 1988.

113 Codex luris Canonici (1983). canon 755. para 1.

114 Ibid, canon 383. para 3.

115 Ibid, canon 933. See generally Tuché, A.. ‘The Code of Canon Law of 1983 and ecumenical relations’ in Thériault, M. and Thorn, J. (eds.). The New Code of Canon Law. Proceedings of the Fifth International Congress of Canon Law (2 vols) (Ottawa. 1986). I. p. 401. See also Ombres, R.. ‘Ecumenism, ecclesiology and canon law’ in N. Doe. M. Hill and R. Ombres. English Canon Law (Cardiff. 1998). ch 5.

116 See Doe, N.. Canon Law in the Anglican Communion (Oxford. 1998). pp. 355ff.

117 Church of England: Revised Canons Ecclesiastical (1969). canons B 43 and B 44 (see. however, the duty to avoid schism in canon A 8): Church in Wales: canon 28/9/1991 (’To permit the establishment of local ecumenical projects’).

118 Lambeth Conference. Resolution 8 (1988).

119 Unitatis Redinlegratio (1964). ch 1: Codex Juris Canonici (1983). canon 844 (governing admission of other churches to the sacraments) may not be used, the commentaries state, for ecumenical purposes: it may be used only in cases of necessity.

120 See the attempt at such an analysis of rules in Doe, N.. The Legal Framework of the Church of England: A Critical Study in a Comparative Context (Oxford. 1996).

121 Though for many this may be the best reason not to focus on canon law: it would be interesting to determine the role of lawyers thus far in ecumenical discussions.

122 Örsy, L.. Theology and Canon Law (Collegeville. Minnesota. 1992). p. 32: “First, one cannot expect canon lawyers to be specialists in theology, philosophy and other subjects: even if it is desirable it is simply not feasible for ordinary human beings. Secondly, canon law is studied and practised by many civil lawyers who have never had any training in theology: in fact, in many European universities canon law is taught in civil law schools and is handled within the horizon of civil legal science only’.

123 See section 4 above.

124 See generally Doe, N.. Canon Law in the Anglican Communion (Oxford. 1998).

125 See Ombres, R.. ‘Ecclesiology. ecumenism and canon law’ in Doe, N.. Hill, M. and Ombres, R. (eds.). English Canon Law (Cardiff. 1998). p. 48 at p. 55 (where the idea is related to Pope John Paul II's notion of a continua reformatio: see Ut Unum Sint, n 17). See also the Apostolic Constitution which promulgated the 1983 Code. Sacrae Disciplinae Leges: ’Hence flow certain fundamental principles by which the whole of the new Code is governed, within the limits of its proper subject and of its expression, which must reflect that subject’.

126 Codex luris Canonici (1983). canon 223. para 1.

127 Broom, H (ed. Kersely, R. H.). A Selection of Legal Maxims (10th edn.London. 1939). p. v.

128 Box, H.. The Principles of Canon Law (Oxford. 1949).

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