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LEGAL THEOLOGY

  • Mark Hill (a1) (a2)
Abstract

Ecclesiology is the study of the church which explores the origins, nature, and purposes of the church universal. Its method includes developing categories to indicate the attributes of the church, as e.g. one, holy, catholic, and apostolic; the people of God; and the fellowship of the spirit. One aim of ecclesiology is to teach and help us understand what may be authentic, required, permissible, or appropriate church structures, such as in ministry, government, discipleship, evangelism, worship, and teaching. Legal theology might be considered to be a branch of ecclesiology. Many scholars refer to church law as applied ecclesiology, and in so doing they speak of a “theology of church law” and a “theology in church law.” The former is a doctrinal and perhaps more speculative exercise; the latter is more descriptive and scientific.

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1 Also visiting professor, Dickson Poon School of Law, King's College, London, and adjunct professor, School of Law, Notre Dame University, Sydney, Australia.

2 Purists seek to maintain a distinction between this term and ecclesiality, which covers the study of the origins, nature, and purposes of a particular institutional church. This essay uses ecclesiology in its broader common usage.

3 See generally Hill Mark, “The Regulation of Christian Churches: Ecclesiology, Law and Polity,” HTS Teologiese Studies/Theological Studies 72, no. 1 (2016).

4 The word polity or order is used interchangeably by several traditions. The term law in this essay is intended to include these synonymous expressions.

5 See Robert Ombres, “Why Then the Law?” New Blackfriars 55, no. 650 (1974): 296–304.

6 For an early forensic excursus into this emergent subject, see Doe Norman, “Towards a Critique of the Role of Theology in English Ecclesiastical and Canon Law,” Ecclesiastical Law Journal 2, no. 11 (1992): 328–46.

7 For a perceptive analysis from a distinguished Anglican ecumenist, see Sagovsky Nicholas, “The Contribution of Canon Law to Anglican-Roman Catholic Ecumenism,” Ecclesiastical Law Journal 13, no. 1 (2011): 414 .

8 See, by way of example, Koffeman Leo J., In Order to Serve: An Ecumenical Introduction to Church Polity (Zürich: Lit, 2014).

9 World Council of Churches, Faith and Order Commission, The Church: Towards a Common Vision (Geneva: World Council of Churches Publications, 2013), viii.

10 For a full consideration, see Doe Norman, Christian Law: Contemporary Principles (Cambridge: Cambridge University Press, 2013).

11 These were the findings of the Christian Law Panel of Experts that met in Rome in November 2013 at the Christian Law Symposium. The panel, chaired by the author, consisted of lawyers and theologians from eight Christian traditions; see Hill Mark, “Christian Law: An Ecumenical Initiative,” Ecclesiastical Law Journal 16, no. 2 (2014): 215–16. The panel met again in 2014, 2015, and 2016, producing a formal response to Common Vision, which was submitted to the Faith and Order Commission of the World Council of Churches in December 2015. A PDF version is available at https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxjaHJpc3RpYW5sYXdncm91cHxneDoyZGQ1N2I5ZTRiNjg3YmU3.

12 The work of the Christian Law Panel of Experts continues, taking areas of church life thematically and finding high levels of convergent practice in such matters as discipline, property, internal regulation, membership, initiation, liturgy, and sacraments.

13 And, indeed, within the same tradition: see Anglican Communion Legal Advisers Network, The Principles of Canon Law Common to the Churches of the Anglican Communion (London: Anglican Communion Office, 2008), which was the fruit of a similar exercise, comparing the constitutive foundational legal documents of each of the autonomous provinces of the Anglican Church. It was not an exercise in comparative law, but one that extracted the principles which animate the various national laws. Unsurprising, a large measure of similarity was discovered.

14 For an informative and revisionist assessment of Richard Hooker's magisterial work, The Lawes of Ecclesiastical Polity, viewed through the prism of jurisprudence, see Doe Norman, “Richard Hooker: Priest and Jurist,” in Great Christian Jurists in English History, ed. Hill Mark and H. R. Helmholz (Cambridge: Cambridge University Press, 2017), 115–37. The volume, Doe contends, “provides a ‘theology of law’ and a practical statement of principles of English church law.”

15 See Re Blagdon Cemetery [2002] Fam 299, in which the court sought a written opinion from a serving bishop, and the numerous cases that have been subsequently decided by chancellors’ discussion regarding whether an exception might be made to the doctrinal principle.

16 See Hill Mark, “Canon Law: The Discipline of Teaching and the Teaching of the Discipline,” in Studies in Canon Law and Common Law in Honor of R. H. Helmholz, ed. L. Troy Harris (Berkeley: Robbins Collection Publications, 2015): 337–53.

17 These assertions are aspirational, for the Church of England at least. The teaching of canon and ecclesiastical law currently has no part in clerical formation, and the cadre of lawyers who serve the church rarely have any grounding in theology. The Ecclesiastical Law Society, which the author chairs, is beginning to take small steps to rectify the matter.

18 See the various essays in Cranmer Frank et al. , The Confluence of Law and Religion: Interdisciplinary Reflections on the Work of Norman Doe (Cambridge: Cambridge University Press, 2016); see especially John Witte, Jr., “The Interdisciplinary Growth of Law and Religion,” ibid., 247–61; Celia Kenny, “New Directions in the Confluence of Law and Religion,” ibid., 262–74. See also Doe Norman and Sandberg Russell, eds., Law and Religion: New Horizons (Leuven: Peeters, 2010).

19 John Witte, Jr., “The Interdisciplinary Growth of Law and Religion,” 247.

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
  • URL: /core/journals/journal-of-law-and-religion
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