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The Contribution of Common Principles of Canon Law to Ecclesial Communion in Anglicanism

  • Norman Doe (a1)
Abstract

An important recent development in worldwide Anglicanism is the emergence over recent years of a project to articulate the principles of canon law common to the churches of the Anglican Communion. This project seeks to express the juridical character of Anglicanism from a global perspective, not only to underscore the many fundamental values that Anglicans share in terms of their polity, ministry, doctrine, liturgy, rites and property, going to the very roots of Anglican identity, but also as a concrete resource for other churches in ecumenical dialogue with Anglicans. This article traces the development of the so-called ius commune project, describes the methodological challenges which it faces, and the process of producing a draft. It also seeks to compare the project with the juridical experiences of other international ecclesial communities, and briefly to place the project in the context of the debate about the adoption of an Anglican Covenant, an initiative proposed by the Lambeth Commission in 2004.

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1 I am extremely grateful to Russell Sandberg, an Associate of the Centre for Law and Religion, Cardiff University, for his invaluable assistance in preparation of this essay. The essay is based on aspects of Doe, N and Sandberg, R, ‘The “state of the union”, a canonical perspective: principles of canon law in the Anglican Communion’, (2006) 49(2) Sewanee Theological Review 234, and a presentation given to the Ecclesiastical Law Society's residential conference ‘The Anglican Communion: crisis and opportunity’, held in Liverpool on 26–28 January 2007, a report of which may be found at (2007) 9 Ecc LJ 222.

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

3 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, a constitution and a code of canons.

4 Eg, the Scottish Episcopal Church: the code is supplemented by resolutions of its synod.

5 Eg, the Province of Southern Africa has a constitution, a code of canons and collections of other instruments (such as acts of the provincial synod).

6 Wales, Constitution, I.1.1: the constitution consists inter alia of ‘all rules and regulations made from time to time by or under the authority or with the consent of the Governing Body’.

7 Australia, Constitution, XII.74: ‘“ordinance” includes any act canon constitution statute legislative measure or provision of a provincial or diocesan synod’.

8 Central Africa, Constitution, Definitions: ‘resolution’ is ‘any expression of the judgment or opinion of Synod, which is intended to have an appreciative, hortatory or advisory and not a mandatory effect’.

9 Following the general model of the rubrics of the Book of Common Prayer 1662.

10 Canada, Book of Alternative Services (1985): ‘For the rest of the service local custom may be established and followed’; Scotland, Canon 1.1: episcopal ordination takes place in accordance with ‘the law and custom of the ancient church’; South East Asia, Constitution, Preamble: that dioceses are associated as a province is ‘in accordance with the accepted traditions and usages of the Anglican Communion’.

11 Hill, M, Ecclesiastical Law (second edition, Oxford, 2001), para 1.32.

12 Australia, Canon 11 1992, 4: this lists canons of 1603 that have ‘no operation or effect in a diocese which adopts this canon’; but a diocese may adopt them if it so wishes.

13 England, Submission of the Clergy Act 1533.

14 Doe, Canon Law in the Anglican Communion, pp 343–350.

15 See, eg, Lambeth Commission on Communion, The Windsor Report 2004 (London, 2004), p 11.

16 In this essay, the terms ‘Anglican common law’ or ‘Anglican ius commune’ are used interchangeably as titles of convenience for the phenomenon ‘principles of canon law common to the churches of the Anglican Communion’.

17 N Doe, ‘Canon law and communion’, (2002) 6 Ecc LJ 241; see also N Doe, ‘The common law of the Anglican Communion’, (2003) 7 Ecc LJ 4: these are based on Doe, Canon Law in the Anglican Communion.

18 While the website for the Consultation no longer exists, at the time of publication of this paper the report could still be viewed in internet archive at <http://web.archive.org/web/20040909151539/www.acclawnet.co.uk/report.pdf>, accessed on 10 October 2007, where the six principles are listed on pp 2–3.

19 Windsor Report, para 114.

20 These attracted either unqualified or qualified agreement. The one rejected was the principle that no minister should refuse to baptise an infant, in spite of the presence of the principle in rubrics of the Book of Common Prayer 1662 (which is generally normative canonically in member churches).

21 Constitution, Article 6.2(1).

22 Canon 50.

23 Canon 32.1

24 Constitution, Article XIX.V.

25 For example, the Roman Catholic Code of Canon Law (1983), Canon 19 and the Code of the Eastern Catholic Churches (1990), Canon 1501.

26 Eg, Australia, Canon 18, 1992: ‘a law … shall be read as including a reference to [inter alia] a principle, a practice or a tradition of the Church of England’.

27 ‘Custom is the best interpreter of laws’: Code of Canon Law, Canon 27.

28 ‘It is the duty of clergy and people to do their utmost not only to avoid occasions of strife but also to seek in penitence and brotherly charity to heal such divisions’: Church of England, Canon A 8.

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

30 The laity ‘must strive to live according to Christ's teachings, to preach the gospel and to realise God's justice in society’: Korea, Canons 42–45.

31 See, for example, Code of Canon Law, Canon 221.

32 See generally The Canon Law Society of Great Britain and Ireland, The Canon Law: letter and spirit (Dublin, 1995), p 77: the principles of law are those which ‘have been known to canonical tradition [or] the universal and fundamental principles … contained in the Regulae Juris’, which represent ‘the vast treasure house of laws and jurisprudence accumulated by the Church in the course of centuries’.

33 Some churches provide for the continuing authority of pre-Reformation canon law: England, Submission of the Clergy Act 1534; Wales, Constitution, IX.36; compare Australia, Canon 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, Canon 4 lists the canons of 1603 that have no effect in a diocese but a right is reserved to a diocese to adopt them.

34 Listing attendance at worship amongst the duties of church membership in, eg, Southern Africa, Chile, Mexico, England and Korea is probably based on LC 1948, Resolution 37.

35 Eg, the requirement to instruct candidates before confirmation: see Melanesia, Canons A.3–A–D; Ireland, Constitution, IX.28(1); see also the 1603 Canons, Canon 61.

36 See Doe, Canon Law in the Anglican Communion, p 266.

37 Matthew 18:17; 1 Corinthians 5:1–5.

38 Thirty-Nine Articles of Religion, Article XXXIII.

39 See, for example, Canons Ecclesiastical 1603, Canon 26.

40 Indeed, it is sometimes possible to recast the principle as a more specific rule; excommunication provisions could be recast as: if an individual engages in certain proscribed forms of conduct, then that person may be excluded from holy communion. See, for example, 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’.

41 For example, when it was founded in 1920, the Church in Wales adopted an abundance of provisions already found in the laws of the Church of Ireland and the Church of England: see Doe, N, The Law of the Church in Wales (Cardiff, 2002), ch 1.

42 It would be interesting to explore possible parallels with secular customary international law.

43 For the principles to be directly enforceable, each church would have to enact a law along the lines of, eg, Southern Africa, Canon 50: ‘It is hereby declared that if any question should arise as to the interpretation of the Canons or Laws of this Church, or of any part thereof, the interpretation shall be governed by the general principles of Canon Law thereto applicable’; see also above notes 21–23.

44 See Doe, Canon Law in the Anglican Communion, ch 2. In the Latin Church, only ordained persons possess the power of governance: Code of Canon Law, Canon 129.

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

46 See Uganda, Constitution, Article 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 and government of the Church solely on the grounds of colour, sex, tribe or region’.

47 For developments in Scotland, New Zealand, Australia and England, see Doe, Canon Law in the Anglican Communion, pp 264–266.

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

49 For the difficulties of induction and the formulation of its general principles, see Doe, Canon Law in the Anglican Communion, pp 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.

50 See also Jones, G, ‘Thy grace shall always prevent …’ in Linzey, A and Kirker, R (eds), Gays and the Future of Anglicanism: responses to the Windsor Report (Winchester, 2005), pp 129133: ‘whilst the ius commune is not the same thing as a juridic bond … in appearance or intention’, it ‘arose through the accidents of British colonial history’, and if so ‘it is very poor theology’; its ‘origin and authority … must have … theological underpinnings’; either it exists ‘accidentally, or it is the necessary expression of a deeper coherence of which the Instruments of Unity are the clearest expressions the Communion has’; it ‘should be nothing more than the elaboration of the founding principles of Anglicanism's orthodox beliefs’, ‘the working out of some very elementary obligations that are then placed on member churches because they elect into the Communion’: any ‘notion that the ius commune might flourish in the Communion is naive so long as such individuals continue to pay nothing more than lip service to some of the central beliefs of the apostolic faith’.

51 The draft statement has already been used informally by the Church in Wales in its discussions about the structural reform of the constitution of that church.

52 For the evidence from actual laws, see Doe, Canon Law in the Anglican Communion, pp 109–110.

53 Ibid, p 145.

54 Ibid, pp 120–122.

55 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 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’.

56 See Doe, Canon Law in the Anglican Communion, p 144.

57 See England, Canons Ecclesiastical 1603, Canon 113.

58 For an example of this, see Uganda, Constitution, Article 3 (quoted in note 46 above).

59 While the original website no longer exists, at the time of publication of this paper a version of the document could still be viewed in internet archive at <http://web.archive.org/web/20040909152135/www.acclawnet.co.uk/docs/2003_nd.pdf>, accessed 11 October 2007.

60 Ibid, Principles, Draft, Definitions.

61 Ibid, Principles 1–8.

62 Ibid, Principles 9–14.

63 Ibid, Principles 15–25.

64 Ibid, Principles 26–46.

65 Ibid, Principles 47–59.

66 Ibid, Principles 60 –79.

67 Ibid, Principles 80–92.

68 Ibid, Principles 93–100.

69 The laws of churches do not contain separate treatment of this subject. However, aspects of the principles treated in Part I are scattered throughout the laws of churches. For example, Principle 5.6: ‘A voluntary declaration, or other form of assent prescribed by law, to comply with ecclesiastical jurisdiction’ commonly appears in the laws of churches: see Doe, Canon Law in the Anglican Communion, pp 23–24.

70 Legal materials in churches dealing with the Anglican Communion are usually very brief and normally appear in constitutional provisions that concern the identity of the individual church (typically as a member church of the Anglican Communion and the general consequences flowing from this): see N Doe, ‘Canon law and communion’, p 241.

71 See Doe, Canon Law in the Anglican Communion.

72 See, eg, Southern Africa, Constitution, Preamble: ‘it is expedient that the members of a Church, not by law established, should … formally set forth the terms of the compact under which it is associated’.

73 See Doe, Canon Law in the Anglican Communion, ch 1.

74 See, for example, Australia, Defence Force Ministry, Canon 1985.

75 Typically, Principles 15 and 20 on legislative competence (normally treated in constitutions).

76 Eg, Principle 69 on the nature of marriage.

77 Eg, Principle 64.6: on baptism and confirmation of mature persons.

78 Eg, Principle 25.6: nemo iudex in sua causa (an aspect of judicial impartiality).

79 Eg, Principle 47.2: the duty to proclaim the Gospel.

80 Eg, Principle 60.1: baptism effects incorporation into the church of Christ.

81 Eg, Principle 53: worship as a fundamental action of the church.

82 Eg, Principle 28. For the use of guidance in the Church of England, see Doe, N, ‘Ecclesiastical quasi-legislation’, in Doe, N, Hill, M, and Ombres, R (eds), English Canon Law (Cardiff, 1998), pp 93103.

83 Such as the principle of the separation of powers (shared with many secular legal systems): for instance, the law of the Province of the West Indies provides that the Provincial Synod may determine matters ‘concerning the common life of the Church … save and except … such matters as lie within the jurisdiction of the Ecclesiastical Courts’: Constitution, Articles 3 and 4.

84 Eg, Principle 19.1: jurisdiction may be exercised by groups or individuals.

85 Eg, Principle 83.1: registers of baptisms must be kept.

86 Eg, Principle 36.5: no bishop, priest or deacon coming from another diocese shall minister in the host diocese without the permission of the host diocesan bishop.

87 Eg, Principle 44.6: the faithful should attend public worship regularly.

88 Eg, Principle 11: each church is autonomous.

89 See, generally, Doe, N, ‘Modern church law’ in Witte, J and Alexander, FS (eds), The Cambridge Companion to Law and Christianity (Cambridge, forthcoming, 2008).

90 Code of Canon Law, Canons 12, 16, 29.

91 A code is a ‘comprehensive and systematic arrangement’ of laws: Nedungatt, G (ed), A Guide to the Eastern Code (Rome, 2002), p 49.

92 Codex Canonum Ecclesiarum Orientalium (Eastern Code), Canon 1, 1493; Motiuk, D, ‘The code of canons of the Eastern Churches: some ten years later’, (2002) 36 Studia Canonica 196.

93 Ware, T, The Orthodox Church (London, 1963, reprinted 1991), p 15.

94 Patsavos, L, ‘The canonical tradition of the Orthodox Church’ in Litsas, FK (ed), A Companion to the Greek Orthodox Church (New York, NY, 1984), p 145.

95 The Rudder (first edition, 1800), from the metaphor of the church as a ship: ‘the members of the Church [are] guided on their voyage through life by means of the holy canons’ (Patsavos, see note 94).

96 Constitution, Article II; the churches are: Greek, Antiochian, Serbian, Romanian, Bulgarian, Carpatho-Russian, Ukrainian and Albanian.

97 Metropolitan Bartholomaios, ‘A common code for the Orthodox churches’, (1973) 1 Kanon 45–53.

98 It would be interesting to explore, however, the degree to which each translates the principles of local church polity onto the international ecclesial plane.

99 Constitution, Articles I–IV.

100 Constitution, Article IV: ‘None of these provisions shall limit the autonomy of any member church’.

101 See Constitutional Practice and Discipline of the Methodist Church (Britain) (2002), paras 782–783.

102 Constitution, Article II.

103 Liturgical law is located outside the Code of Canon Law, Canon 2.

104 The constitution is organised in 7 Articles.

105 It deals with the ecclesiological foundations of the union (eg, the duties of communion and the right of autonomy) and the international bishops' conference (composition, functions and discipline). The statute is organised on the basis of Preamble, Order and Rules.

106 This deals with doctrinal basis, nature and functions, scope of authority, membership and affiliation, organisation, the assembly, the council, national committees, officers and secretariat, finance, and amendments and bylaws. It has 14 Articles; the bylaws treat equivalent subjects.

107 It covers membership, purposes, general council, executive committee, officers, departments, organisation of areas and amendments. It has 12 articles; the bylaws deal with associated subjects.

108 It covers objective, method of operations, membership, Baptist World Congress, General Council, executive committee, officers, departments, regional fellowships and amendments (as do its bylaws).

109 See above in the footnotes on subject matter.

110 B. Order, Article 1.

111 Preamble, Articles I and V.1.

112 Articles I–III,V.

113 Articles I.3 and III (1–9); they include the following goals: to unite the member churches in common service wherever needed and practicable, and to aid member churches which may be weak, oppressed or persecuted, and to contribute to the ecumenical movement.

114 For the Constitution, see Constitutional Practice and Discipline, paras 782–783.

115 Bylaws of the General Council (2002).

116 Sacrae Disclipinae Leges, Apostolic Constitution (25 January 1983), promulgating the Code (1983).

117 Code of Canon Law, Canon 1752.

118 Beal, JP, Coriden, JA and Green, TJ (eds), New Commentary on the Code of Canon Law (New York, NY, 2000), pp 18.

119 Patsavos, ‘The canonical tradition of the Orthodox Church’, p 145.

120 Urresti, T, ‘Canon law and theology: two different sciences’, (1967) 8 Concilium 10.

121 Örsy, L, Theology and Canon Law (Collegeville, MN, 1992), pp 137, 165: theology ‘contains a body of organised knowledge obtained through revelation and reflection of what was revealed; [canon law] consists of a system of norms of action issued by an ecclesiastical authority’; this study also reviews other schools of thought.

122 Corecco, E, The Theology of Canon Law (Pittsburgh, PA, 1992).

123 Patsavos, ‘The canonical tradition of the Orthodox Church’, p 145.

124 Statement made at the Barmen Synod, 31 May 1934, of the German Evangelical Church: quoted in Reuver, M, Faith and Law: juridical perspectives for the ecumenical movement (Geneva, 2000), p 4.

125 Ibid, p 3.

126 Code of Canon Law, Canons 1 and 11: merely ecclesiastical laws bind those baptised in the Catholic church or received into it; universal laws are binding everywhere on all those for whom they were enacted.

127 Eastern Code, Canons 1489–1491.

128 Erickson, JH, The Challenge of Our Past (Crestwood, NY, 1991), ch 1.

129 Constitution, Article V.

130 That is, a law dealing with ecclesial communion (ius communionis).

131 Suggested form of law: ‘The Governing Body of the Church in Wales authorises the Archbishop of Wales to enter on behalf of this church the Anglican Covenant and commits the Church in Wales to comply and act in a manner compatible with the Covenant so entered’: Windsor Report, para 118, n 61.

132 Report, Anglican Communion News Service (ACNS), 19 February 2007, para 8.

133 Windsor Report, Appendix Two, Proposed Anglican Covenant, Article 17.1.

134 Nassau Draft Covenant, Article 6.3.

135 Points raised in Discussion of the Draft Text for an Anglican Covenant.

136 The elucidation of common principles has been particularly helpful, for instance, in the work of the Colloquium of Anglican and Roman Catholic Canon Lawyers, established in Rome in 1999.

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

138 See Walker, D, Oxford Companion to Law (Oxford, 1980), p 253, ‘Common Law Systems’ (eg, UK, USA).

139 Code of Canon Law, Canon 373; bishops govern dioceses as vicars of Christ not ‘as vicars of the Roman Pontiff for they exercise power … in their own right’: Lumen Gentium, 27.

140 Code of Canon Law, Canons 13, 20, 23–26: custom is law if it is: approved by the relevant legislator; not contrary to divine law; reasonable; observed by a community capable of receiving a law; observed with the intention of introducing a law; and observed for continuous years.

141 Particular churches include patriarchal churches (Canon 25), major archiepiscopal churches (Canon 151) and metropolitan churches (Canon 155). The episcopal synod of a patriarchal church may legislate for that church (Canon 1101).

142 Greek Orthodox Archdiocese of America (GOAA), Charter (2003), Article 1.

143 Lutheran Church of Australia (LCA), Constitution, Articles VI–IX; III.(k): one of the objects of LCA is to cultivate uniformity in customs.

144 LCA, Bylaws, Article IV.1: amendments to a congregation constitution must be approved by the District Church Council; congregation must accept the LCA Confession, constitution and bylaws.

145 Weatherhead, JL (ed), The Constitution and Laws of the Church of Scotland (Edinburgh, 1997).

146 Presbyterian Church in America (PCA), Book of Church Order (BCO), I.26: the constitution of the Presbyterian Church in America consists of its doctrinal standards set out in the Westminster Confession of Faith, the Larger and Short Catechisms, and its Book of Church Order. Amendment of the Book of Church Order is effected by the General Assembly with the consent of two-thirds of the Presbyteries; and of the Confession of Faith and Larger and Shorter Catechisms by a three-quarters vote of the General Assembly with the consent of three-quarters of the Presbyteries.

147 Constitutional Practice and Discipline, para 338.

148 They are accumulated in the URC Manual (2000).

149 Code of Canon Law, Canon 135.1: ‘The power of governance is distinguished as legislative, executive and judicial’.

150 Eg, Polish National Church (USA), Constitution, Article VI.1: ‘The authority of this Church is vested in three branches, namely: legislative, executive and judicial’.

151 GOAA, Charter: law-making vests in the eparchial synod (Article 10); adjudication in the spiritual courts (Article 9); the administration of monasteries in the local hierarch (Article 21).

152 Eg, Church of England: law-making vests in the General Synod (Synodical Government Measure 1969); administration of a parish in the Parochial Church Council (Parochial Church Councils (Powers) Measure 1956); and adjudication in the courts (Ecclesiastical Jurisdiction Measure 1963).

153 Evangelical Lutheran Church in Canada (ELCIC), Constitution: the Convention is ‘the highest legislative authority’ (Article X.1); the episcopal president of the National Church Council is ‘the chief executive officer’ (Article XII.5); and judicial functions vest in the Court of Adjudication (Article XVIII).

154 Legislative, administrative and judicial functions vest in the court of General Assembly.

155 United Reformed Church (Britain), Manual, B. General Assembly is required to: make regulations; appoint moderators of synods; and ‘determine when rights of personal conviction are asserted to the injury of the unity and peace’ of the URC.

156 Code of Canon Law, Canon 221: the faithful have the right not to be punished except in accord with the norm of law.

157 Polish National Church, Constitution XXII.

158 GOAA, Charter, Article 9: a hierarch who judged a case at first instance cannot hear an appeal.

159 Doe, Canon Law in the Anglican Communion, pp 86–92.

160 LCA, Constitution, Article X: the judicial system of the church must uphold the ‘rules of natural justice’.

161 Weatherhead (ed), The Constitution and Laws of the Church of Scotland, p 42.

162 Code of Canon Law, Canons 747–755.

163 Archdiocese of Thyateira and Great Britain, Instructions: Apostasy and Restoration.

164 Church in Wales, Constitution, Article XI.18: clergy and laity are subject to the Disciplinary Tribunal for ‘teaching, preaching, publishing or professing doctrine or belief incompatible with that of the Church in Wales’; in the Church of England, lay people are not subject to doctrinal discipline in church courts.

165 ELCIC, Approved Model Constitution for Congregations, Article IV.6–9.

166 PCA, BCO, Preface, II.3; I.1.1.

167 Code of Canon Law, Canon 214 (right to worship); Canon 920 (the duty to receive holy communion).

168 Church of England, Canon B 15: the duty of confirmed persons to receive holy communion.

169 ELCIC, Approved Model Constitution for Congregations, Article III.a.

170 PCA, BCO, III.47.

171 Code of Canon Law, Canon 849.

172 Greek Orthodox Archdiocese of Australia, Handbook, Baptisms.

173 Church of England, Canon B 21.

174 Evangelical Lutheran Church in South Africa (Natal-Transvaal), Guidelines, 1.10.

175 PCA, BCO, III.56: baptism is not to be delayed.

176 Constitutional Practice and Discipline, Deed of Union, para 6; Standing Orders, 010A.

177 In 1974, the Faith and Order Commission of the World Council of Churches adopted an Outline for the study of ‘The Ecumenical Movement and Church Law’; it was not pursued. See Reuver, Faith and Law, p 5.

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