LAW AND RELIGION THEMES IN NORMAN DOE'S SCHOLARSHIP

Doe's first major monograph, Fundamental Authority in Late Medieval English Law (1990)Footnote ³ put him squarely in the middle of sophisticated medieval discussions of law and religion among theologians, philosophers, moralists and canonists. Here, in a way that foreshadowed work to come, he grappled with some of the fundamental dialectics of this interdisciplinary field – natural law and positivism, statute and equity, conscience and custom, crime and punishment, authority and liberty, rights and wrongs, theocracy and democracy, church and state, canon law and civil law, and more. Already here he showed his trademark patience with texts – squeezing out of Year Book cases and obscure sages like Reginald Pecock remarkably prescient and provocative ideas about law and religion.

Since that first major law and religion title, Doe has contributed a number of definitive essays, book chapters and anthologies on general law and religion themes,Footnote ⁴ including notably issues of natural law,Footnote ⁵ criminal law,Footnote ⁶ constitutional lawFootnote ⁷ and legal history.Footnote ⁸ He also sketched several portraits of historical law and religion scholars, including recent essays on Richard HookerFootnote ⁹ and William Beveridge.Footnote ¹⁰ His leadership in the law and religion field has been further confirmed by his appointment as series editor of the Routledge Series on Law and Religion and the Brill Research Perspectives in Law and Religion and his service as dissertation supervisor and advisor to a number of law and religion students at Cardiff, Oxford, Cambridge and King's College London.

ANGLICAN CHURCH LAW

While this work on general law and religion themes is impressive enough, Doe's most enduring contributions have come in the area of comparative church law, a topic he has mastered in a way that no other modern scholar has done. His work on church law has proceeded in layers, each building logically and methodologically on the one before. His first focus, in 1992, was on the law of his own Church in Wales,Footnote ¹¹ a topic to which he returned several times,Footnote ¹² each time with new insights into how the Welsh model of separation of church and state produced a distinct system of church law, derivative of and still dependent in part on English ecclesiastical law, but also increasingly self-generated and self-sustaining.

These early studies on the Church in Wales proved to be but a prelude to his two massive Oxford University Press monographs – The Legal Framework of the Church of England: A Critical Study in a Comparative Context (1996) and Canon Law in the Anglican Communion: A Worldwide Perspective (1998).Footnote ¹³ Both works take the full measure of the law of the Anglican Communion worldwide, an ancient and intricate legal system that, through colonisation and missionary work over the centuries, has become transnational, multicultural and multilingual in reach. Here Doe laid out in exquisite detail the lattice-work of executive, legislative and judicial forms and functions of the Anglican Church and its bishops, deacons and parish priests; the rules and regulations governing the polity, property and finances of the local, national and global church as well as the laws and procedures governing doctrine, liturgy, worship, mission, baptism, catechesis, education, confirmation, confession, marriage, divorce, and more.

Part of this lengthy effort was to take the full measure of this complex legal system, with its many centuries-old laws that not only ‘command’ and ‘prohibit’ conduct but also ‘facilitate’ and ‘encourage’ the behaviour considered becoming of Anglican clergy and laity in any place or circumstance.Footnote ¹⁴ Part of the effort was to impress on religious and political authorities how important a well-functioning system of church law is for protecting corporate religious freedom and autonomy and harmonious church-state relationships. Part of this effort, too, was to map the areas in need of reform and adjustment as the global Anglican Communion faced various state systems of hard and soft religious establishment and separation, and various forms of accommodation and cooperation with political authorities, and sometimes discrimination and repression as well.Footnote ¹⁵ No other book, besides Mark Hill's comprehensive Ecclesiastical Law,Footnote ¹⁶ has done more to help the global Anglican Church get its legal house in full order. Indeed, Doe and Hill have long appeared regularly together at seminaries, denominational and ecumenical gatherings, as well as at major gatherings of bishops and chancellors in the Anglican Communion offering instruction and counsel on Anglican Church law.

Doe has continued to write on discrete topics of Anglican Church law since publication of these twin volumes – including issues of marriage and sexuality,Footnote ¹⁷ clerical ordination and discipline,Footnote ¹⁸ and a book on the specialised church laws governing those glorious Anglican cathedrals that still attract tourists and BBC viewers by the millions, albeit rather too few local parishioners today.Footnote ¹⁹ In addition, he has contributed to ongoing conversations on important church questions with timely speeches and articles for the Ecclesiastical Law Society and its flagship journal, the Ecclesiastical Law Journal, whose editorial board he has long graced.

Doe has also applied his immense learning directly to Anglican Church law reforms and promotion of Anglican unity around common legal principles. In 2001, he presented his Canon Law in the Anglican Communion (1998) to the Primates of the Anglican Communion, generating ample discussion. In 2002, a consultation at Canterbury agreed to the category principles of Anglican canon law that he had set out. That same year the Anglican Communion Legal Advisers’ Network was set up, and Doe as consultant drafted the candidate legal principles for the Network's deliberation. That effort eventually yielded The Principles of Canon Law Common to the Churches of the Anglican Communion (2008),Footnote ²⁰ which was launched at the Lambeth Conference 2008. Under the leadership of Mark Hill and the Ecclesiastical Law Society, Doe is now working on a second iteration of the 2008 statement of principles. Working groups across the globe met in 2021 to discuss and to propose revisions of the principles. Doe is now revising the 2008 statement of principles in preparation for meetings of the Lambeth Conference in July 2022.

An exemplary product of Doe's church leadership was his clarion call for principled reform and covenantal unity of the 44 autonomous provinces of the worldwide Anglican Communion, which he set forth in An Anglican Covenant: Theological and Legal Considerations for a Global Debate (2008).Footnote ²¹ Like every church, the Anglican Church has always faced dissent and debate over fundamentals of the faith, including, in recent years, deep angst over women's ordination and changes to The Book of Common Prayer. But the divisions that have emerged over homosexuality – whether gays, lesbians, bisexuals and transsexuals should be admitted to baptism, communion, marriage, ordination and/or episcopal succession – have rent worldwide Anglicanism asunder, creating sharp schisms among English, African and North American Anglican churches.

Doe has used the venerable biblical principle of covenant to call the church back to its classic via media and traditional global unity As a member of the Lambeth Commission 2003–2004, he suggested using this covenant idea as a point of unity for global Anglicanism, and he drafted the outline of that idea in the official Commission's Windsor Report of 2004. He was then put on the Covenant Design Group which finalised the proposed Anglican Communion Covenant five years later.Footnote ²² The idea of covenant captures the heart of a Christian communion in word and sacrament that holds worldwide Anglicans together. It underscores the biblical reality that a covenanted people must be mutually sacrificial and accountable to each other and God, and will be ‘blessed and cursed’ accordingly. It underscores the biblical reality that God remains faithful and forgiving to God's covenanted people, even when they depart radically from God's law and word. Anglicans of the world can take a hearty lesson from this biblical trope, Doe argues.Footnote ²³

Moreover, the Latin term for ‘covenant’, foedus, is the root of the constitutional term ‘federalism’, which has both political and ecclesiastical implications. Just as a group of semi-autonomous states or provinces can be united into a single nation-state with certain over-arching and pre-emptory commitments and commands, so the 44 provinces of worldwide Anglicanism can remain united under the final authority of the Archbishop of Canterbury and the episcopal structures and pre-emptory norms of the Church of England. All the virtues of federalism are captured in this kind of ‘ecclesiastical federalism’ – allowing local diversity and experimentation on the adiaphora of the faith without jeopardising unity or membership. There is clever and cogent ecclesiology at work in Doe's formulations on covenant and communion.Footnote ²⁴

FROM COMPARATIVE CHURCH LAW TO JURIDICAL ECUMENISM

Having mastered the intricacies of the laws of the churches of Wales and England, and the global Anglican communion, Professor Doe gradually widened his scholarship to include Roman Catholic canon law, both in its own right and in rich comparison with Anglican church law. The ancient system of Catholic canon law – adumbrated by the first millennium church fathers and councils, elaborated in Gratian's 1140 Decretum and Gregory IX's 1234 Decretals, and codified in the modern codes of western and eastern Catholic churches in 1917, 1983 and 2000 – was a constant comparative touchstone for him in his earlier work.Footnote ²⁵ In 2000, Doe began a series of writings on what he aptly called ‘comparative canon law’ – analysing concretely how Catholic and Anglican canon laws deal with parallel issues of clerical ordination, support and discipline; church baptism, initiation and membership; marriage, divorce and sexual morality; and many other topics.Footnote ²⁶ Here, too, his work has been deliberately collaborative, through his leadership in the Colloquium of Anglican and Roman Catholic Canon Lawyers and his editorship of several anthologies on comparative canon law as well as the journals Nomokonika and Annuario di Diritto Comparato delle Religioni together with the Ecclesiastical Law Journal.

Driving this long study of comparative canon law has been Doe's insistence that church law is a common and necessary feature of church life, an essential dimension of ecclesiology and theology, and an important foundation for principled Christian ecumenism. These insights are at the heart of Doe's next great work in this field, Christian Law: Contemporary Principles (2013).Footnote ²⁷ Here, for the first time, we find a comprehensive comparison of the church laws operating in all the largest Christian denominations in the world today – Catholic, Orthodox, Anglican, Lutheran, Methodist, Reformed, Presbyterian, Congregational, United and Baptist. In this volume, Doe applied the tight topical and analytical grids of his earlier work on the church laws of Wales and England, and of Anglicanism and Catholicism atop all these forms and norms of ecclesiastical discipline and regulation. What he discovered, documented and proved is that common laws and regulations hold the worldwide church together, much as the ancient confessions and creeds still do. Here we have not only a powerful example of the confluence of law and religion but also a strong foundation on which to build a global principled ecumenism. Doe's conclusion to this highly innovative and valuable title is worth quoting a bit:

Doe ultimately distilled 50 principles from this granular empirical work on each denomination's laws, each principle further subdivided into subprinciples. Let me just quote the first three of these principles to give readers a sense of the richness and novelty of this material.

Not content to rest on the immense scholarly achievement of his landmark title on Christian Law, Doe has led focused efforts to foster deliberative ecumenism based on these principles of church law. In a series of symposia and conversations in the 2010s, he drew together representatives from major Christian denominations to see how much confluence of opinion there might be on a set of common principles of church law. The group included distinguished scholars from the Roman Catholic, Eastern Catholic, Orthodox, Anglican, Lutheran, Methodist, Reformed, Presbyterian, Pentecostal and United Churches, together with leadership from the World Council of Churches. In exemplary ecumenical earnest, the group sat together several times for many days, quietly presenting, listening and learning about the legal culture of each denomination, with an eye to seeing the points of conflict, convergence and creative tension in how each conceived and constructed their church law. From this inductive exercise, they slowly worked out ‘A Statement of Principles of Christian Law Common to the Component Churches’. Some 230 common legal principles ultimately won common assent from this group of scholars and the church leaders whom they consulted.

Doe harvested the fruit of those ecumenical labours in his 2020 anthology on Church Laws and Ecumenism: A New Path for Christian Unity.Footnote ³⁰ The major scholars involved in the deliberations presented a crisp overview of the origin, range and current uses of church law within their denominations and analysed how their denominations reflect and sometimes refract or reject the 230 common principles articulated in the book (revised from the principles in Doe's Christian Law). Readers are treated to authoritative chapters on more familiar Roman Catholic, Anglican, Methodist and Presbyterian church laws, but also less familiar Eastern Orthodox, Eastern Catholic and Pentecostal church laws. Together, these chapters provide fascinating insights into the inner legal working and thinking of these denominations. Professor Doe's own magisterial introduction sets this modern ecumenical project into a two-millennium context and ably defends the concept of regulae, maxims or principles as a suitable trope for building a new ‘concordance of discordant canons’ across the denominations.

All these church laws that have occupied Doe so deeply in the past 30 years are not merely arcane dusty documents for legal specialists to ponder. They are front-page news these days. The Roman Catholic Church has been shaken by revelations of widespread paedophilia by delinquent priests and cover-ups by complicit bishops. Mainline Protestants and Evangelicals alike face instances of sexual, physical and financial abuses by their clergy. Both Methodist and Anglican communities worldwide are divided over questions of same-sex liberty, marriage and adoption. Pentecostal churches in the Global South face massive resistance from local authorities. Orthodox churches have been decimated by Middle Eastern wars and a return to Soviet-style controls of their clergy. In Western liberal lands, religious freedom is threatened by withering academic and political attacks. All these challenges test the faith of the church and its capacity to repent, reconcile, renew and reform itself. These new challenges also test the law of the church and its capacity to hold the local and global church to its most fundamental mission of preaching the Word, administering the sacraments, catechising the young, and caring for the poor and needy in imitation of Christ. In both his scholarship and his active engagement with the church in his native Wales and abroad, Norman Doe has shown the way for the church to move into this redemptive work through church law.

COMPARATIVE RELIGIOUS LAW: JUDAISM, CHRISTIANITY AND ISLAM

Having copiously studied comparative Christian law in three decades of study and scholarship, Doe has taken the next natural step in this intellectual pilgrimage – namely, analysing the operation of religious legal systems altogether, especially the role of faith-based laws in Western liberal democracies. In 2008, Archbishop of Canterbury Rowan Williams gave this topic urgency with his (in)famous comment that some accommodation of Islamic law was ‘unavoidable’ in the United Kingdom.Footnote ³¹ What this comment exposed, to the surprise of many, was the reality that not only Christian churches but Jewish, Islamic and other religious and cultural groups have been quietly using their own internal religious legal systems to govern large portions of the lives of their voluntary faithful – not only religious worship, group membership and moral life, but also marriage and family, charity and education, property and inheritance, even crimes and torts and other legal topics. These internal religious legal systems are administered and enforced by an array of religious tribunals, operating alongside the laws of the secular state, sometimes with arbitration and other state licenses, sometimes without.Footnote ³²

Joining an ample queue of others who have weighed in, Doe and his colleagues wrote several trenchant pieces on the important and necessary role of religious laws and tribunals in modern democracies.Footnote ³³ They also warned that failure to accommodate Islamic tribunals, albeit with tight regulations and state supervision, would soon jeopardise Christian canon law too, and drive many religious legal systems underground, which might ultimately prove worse for all parties. Doe and his colleagues called instead for religious autonomy over core matters of the faith, polity and voluntary faith community, and shared jurisdiction over the classic res mixta – marriage and family life, charity and social welfare, education and schooling, and other areas of life that feature spiritual and temporal dimensions.Footnote ³⁴

As his readers have now come to expect, Doe has brought these insights together in yet another hefty Cambridge monograph, Comparative Religious Law: Judaism, Christianity and Islam (2018).Footnote ³⁵ Here again, he used his trademark method of studying closely the legal instruments of Halacha, Canon Law and Shari'a on the books in modern Abrahamic communities, comparing them with each other, with historical sources, and with close attention to regional and denominational variations. Successive chapters in this volume lined up the norms governing the status, duties and rights of the faithful; the appointment and functions of faith leaders; the institutions and officers of governance in these communities; the courts and tribunals used to resolve disputes among their voluntary faithful; the rules and procedures governing faith, worship and education; the rites of passage and initiation into the faith and faith community; sex, marriage, family and children; and the property and finances of these faith communities. From this close comparative study, Doe again distilled a proposed ‘charter of principles of religious law’ that Jews, Christians and Muslims might hold in common or at least in creative tension. Along the way, he pointed to deep common urtexts, various productive periods of legal trialogues among these three traditions, comparable hermeneutical and forensic methods of parsing and applying legal norms and procedures, comparable devotion to natural laws and modern scientific methods. In our restive modern day, when Jews, Christians and Muslims have been slandering if not slaughtering each other with a vengeance, and where each of these faith communities is subject to massive state and communal persecution in the majority of the countries of the world, Doe's emphasis on inter-religious cooperation and mutual understanding around basic matters of religion and law holds high promise.

In this new work and in earlier work with his former student and now protégé and partner, Russell Sandberg, Doe drew a distinction between ‘religious law’ (the internal laws governing the church and other religious bodies) and ‘religion law’ (the law of the state and international community that has to do with religion). Religion law, he writes,

Doe's earlier book on Law and Religion in Europe offered a crisp and clear overview of how the national and transnational religion laws of Western European secular authorities have affected the religious laws and lives of Christians, Jews, Muslims and other religious communities living in Europe. Religion law, he shows, includes not only the classic norms of individual and group religious freedom set out in national statutes (like the 1998 Human Rights Act in the United Kingdom), regional instruments (like Article 9 of the European Convention on Human Rights), or international human rights documents (like Article 18 of the International Covenant on Civil and Political Rights) – all of which, for better or worse, have become very active in governing and sometimes restricting European religious communities.Footnote ³⁷ It also covers the intricate rules and regulations governing corporate religious life (religious property, polity, registration, labour, workplace, contracts, finance, taxation, exemption, discipline, governance, land use, historic preservation, zoning); and private religious life (freedom of conscience, religious equality and non-discrimination, and freedom of worship, assembly, association, publication, interaction, parenting, travel); and the res mixta (education, social welfare and family, as well as the individual rights and institutional structures that attend them).

Doe and many others have shown that the internal religious laws and the external religion laws together help shape the religious lives of individuals and groups. In nations dedicated to religious freedom for all, the inevitable tensions and conflicts between these internal and external laws governing religion are worked out through judicial and regulatory exemptions, statutory accommodations, national or regional concordats and covenants, and sometimes monumental cases before constitutional courts or human rights tribunals.Footnote ³⁸ In nations with religious establishments, the established faith often can depend on favourable external religion laws, while non-established faiths need to depend more on their own internal religious laws. In nations less hospitable to religion and religious freedom, or bent on establishing secularism or laïcité as some European countries now are, many religious communities, especially new, unpopular or minority faiths, often must contort or camouflage themselves to gain the basic legal right to exist, let alone to flourish. In these less hospitable legal environments, and even more in nations that are actively hostile to religion altogether, the internal religious legal systems are essential to the resilience and fortitude of these faith communities.Footnote ³⁹

SUMMARY AND CONCLUSIONS

From its biblical beginnings, the Christian church has always struggled with the dialectics of law and Gospel, structure and spirit, order and faith. Christianity was born into an intensely legal culture governed by the two great legal systems of Judaism and the Roman Empire. Some of Jesus’ early followers saw in his message of faith and love not only salvation from the bondage of sin and death, but also liberation from the strictures of law and order. Some saw in his repeated rebukes of the lawyers and scribes of his day, a call to antinomianism, a licence to ‘sin that grace may abound’.Footnote ⁴⁰ Jesus had to remind his followers several times that ‘the law’, including the Mosaic law, remained critical to Christian life:

When further questioned about whether Roman law still bound them, Jesus instructed his followers: ‘Render to Caesar, the things that are Caesar's the things that are God's’.Footnote ⁴²

St Paul repeated this instruction for individual Christians, and, together with other early apostles, established the first rules of order and organisation, polity and property, education and charity, morality and discipline for the early churches. Various apostolic canons and constitutions soon followed, beginning with the Didache in ca 90, and a growing body of church laws created by individual church fathers, bishops and early synods. These church laws were consolidated and expanded by the canons of the great ecumenical church councils from the fourth to the sixth centuries, and they also penetrated the imperial laws of the Roman Emperors and the later Germanic kings. Norman Doe has full command of these earlier legal sources, and they have figured in his analysis of comparative church law.

While church laws continued to develop in the later first millennium,Footnote ⁴³ the High Middle Ages was a much higher watermark for the expansion of church law. From the twelfth to the sixteenth centuries, the Catholic Church was the universal legal ruler of Western Christendom. The church claimed exclusive personal jurisdiction over clerics, pilgrims, students, the poor, heretics, Jews and Muslims. It claimed exclusive subject matter jurisdiction over doctrine and liturgy; ecclesiastical property, polity and patronage; sex, marriage and family life; education, charity and inheritance; oral promises, oaths and various contracts; and all manner of moral, ideological and sexual crimes. The church also exercised concurrent jurisdiction with the secular authorities over all matters that required church discipline or Christian equity. It predicated these jurisdictional claims in part on its authority over the seven sacraments, in part on the papal power of the ‘keys’ that Christ had bequeathed to St Peter and through him to all succeeding apostles and clerical authorities.Footnote ⁴⁴

The medieval church developed an elaborate body of canon law to support these jurisdictional claims. Thousands of legal teachings from the first millennium were collated and synthesised in the famous Decretum Gratiani (ca 1140) and then in the Decretales Gregorii IX (1234). These anchor texts and later collections of papal and conciliar legislation, including that of the Lateran Councils and the Council of Trent, eventually came together in the massive Corpus Iuris Canonici (1586). Alongside these legal compilations, new university law faculties developed a sophisticated jurisprudence to study and teach this canon law, addressing many aspects of public, private, procedural and penal law with ever greater sophistication. An intricate hierarchy of church courts and clerical officials administered the canon law in accordance with sophisticated new rules of procedure and evidence. A bureaucratic network of ecclesiastical officials presided over the church's executive and administrative functions. This ‘classical canon law’, as Richard Helmholz has aptly named it,Footnote ⁴⁵ still lies at the heart of the Catholic canon law codes of the twentieth century. It was this rich body of Catholic church law that attracted Norman Doe's first major book in 1990, and it has remained a touchstone in his work ever since.

More central to Professor Doe's work has been the law of the Anglican communion born of the sixteenth century Protestant Reformation. Unlike the Lutheran and Calvinist Reformations of the Continent that jettisoned a good deal of medieval canon in favour of strong new secular legislation, the English reformation struck a more subtle via media between church and state, Convocation and Parliament, canon law and common law, church courts and temporal courts. Particularly after the sixteenth century Elizabethan Settlement and the seventeenth century Restoration, the authorities in Wales, England and other parts of the British Commonwealth developed a vast and sophisticated ecclesiastical law system that synthesised medieval canon law and the new Anglican theology. English church courts dealt with a range of questions not only of church polity, property, doctrine and liturgy, but also subjects like marriage, charity, education, defamation and probate. Even though the later nineteenth century reforms diminished its reach, ecclesiastical law has remained at the backbone of the global Anglican church.

Comparable religious laws form the backbone of many other Christian denominations around the world, Professor Doe has shown, and indeed they are at the core of Judaism, Islam, and many other world religions, too. These laws are part of the legal dimensions of religion – the necessary principles, precepts, procedures and practices of law that give churches and other religious communities their order and organisation, their structure and form. While these laws vary greatly in detail, they are an essential part of the life of the church and the Christian faith. Without law at their backbone, churches crumble into amorphous spiritualism.

Over the centuries, great Christian jurists have helped to form and reform the many systems of church law in place around the world today.Footnote ⁴⁶ Every few generations, a great Christian jurist or church council has emerged to provide a new ‘concordance of discordant canons’, a new code of church law, a new summa of legal principles. Today, that jurist is Norman Doe.