The Law of Organised Religions: Freedom and Truth

by Philip Jones

Dignitatis Humanae (1965), the Second Vatican Council’s declaration on religious freedom, is a helpful guide to the relationship between ecclesiastical governance and secular governance.  Religious freedom arises from man’s duty and vocation to seek the truth.  Man is by nature a truth-seeking being.  If man has a duty to seek the truth he must also have the right to seek it.  He must therefore have the freedom necessary to do this.

Thus religious freedom is not an end in itself.  The right to it does not arise (at least not directly) from any duty to respect different opinions, cultural values or ‘diversity’.  Religious freedom is concerned with objective truth, not directly with subjective belief.  It does not mean that all religions or philosophies are equally valid.

Hence all ecclesiastical governance (ecclesiastical law, canon law, quasi-contractual rules) is concerned to administer the Truth of religion, the divinely revealed Word and Sacraments.  Secular governance is required to ensure that ecclesiastical governance has sufficient freedom to administer this Truth.

Professor Julian Rivers begins his recent book The Law of Organised Religions: Between Establishment and Secularism (2010) Oxford University Press with a quotation from Magna Carta, ‘… quod Anglicana ecclesia libera sit …’.  This is entirely apposite to his subject.  The Church’s essential function of administering the Word and Sacraments, and its concomitant need of secular freedom (libera) to discharge this, are exactly the same today as they were in the middle ages.

What has changed, of course, is perception of the Truth, of what the Word and Sacraments are.  Different Church communities now have different perceptions.  Ecclesiastical governance has changed as perceptions of Truth have changed.  Secular governance has therefore had to change as well, in order to ensure that the changed ecclesiastical governance has its necessary freedom.

Like many other commentators before him, Professor Rivers is critical of the House of Lords’ decision in the famous case of Free Church of Scotland v Lord Overtoun (1904) Appeal Cases 515, and of some of the earlier secular case law on ecclesiastical governance.  The criticism may be unwarranted.  Freedom can only follow truth, it cannot precede it.  A ‘freedom’ which seeks to predetermine or anticipate truth is no freedom, only tyranny.  Secular governance can only react to changes (unions, schisms etc) in ecclesiastical governance.

Thus secular governance in the 19th and early 20th centuries did not, as Professor Rivers suggests, create a tension in ecclesiastical governance (p.78).   It merely exposed an existing tension.  The Free Church case arose because that Church changed its governance, due to a change in its perception of Truth.  The secular law could not have anticipated this.  The House of Lords was required to apply the secular law as it then stood.  As Rivers acknowledges, the secular law was subsequently changed by Parliament, in order to accommodate the change in the Free Church’s governance (the Churches (Scotland) Act 1905).

Speaking in the Free Church case, Lord Chancellor Halsbury held that ‘The identity of a religious community described as a Church must consist in the unity of its doctrines’ (p.612).  Rivers criticises the ‘rigidity’ (p.82) of an approach which identifies a Church as such by its religious doctrine.  But it is difficult to see how else a Church can be defined.  If the religious doctrine or ‘Truth’ is not identified, it will be difficult to ensure the necessary freedom.

Professor Rivers cites the Church of Scotland Act 1921 as the ‘idealised model’ of religious freedom (p.318).  Yet the freedom must fit the truth, not vice versa.  The freedom enjoyed by the Church of Scotland must be understood in the context of its Truth-claim, which is a divinely appointed presbyterian system: ‘This Church … wherein the Lord Jesus Christ has appointed a government of office-bearers, receives [spiritual authority] from Him … and from Him alone … subject to no civil authority …’ (Declaratory Article 4).

The Truth-claim of congregationalist protestants is much more modest.  It derives from the Lord’s words ‘where two or three are gathered together in My Name etc’.  The United Reformed Church’s constitution provides that a ‘church’ is constituted by ‘members … associating in a locality’ (B1, 6th edition 2000).  The freedom required by congregationalists is therefore limited to ‘the assistance of the law of the land’ (Methodist Constitutional Practice and Discipline, 7th edition 1988).  This ‘assistance’ is effected by the general law of contract and trusts, supplemented by private Acts of Parliament.

The Roman Catholic Church, by contrast, claims to be divinely constituted as a supranational, autonomous society (1983 Code, canons 204.2, 113.1), under a papal sovereignty derived from ‘The office uniquely committed by the Lord to Peter’ (canon 331).  Such a Truth-claim requires freedom in public international law as well as in domestic laws.  The Pope ‘is judged by no one’ (canon 1404), so the freedom must include sovereign immunity from legal action.  (This has been the subject of a recent book by Mr Patrick Robertson QC).

The Anglican Truth-claim is very unclear.  Like the Roman and Scottish Churches it has a divinely ordained ministry, to administer the Word and Sacraments.  Unlike the Pope and the presbytery, however, the Anglican ordained ministry does not receive the divine power of governance.  That vests in the secular ruler.  He or she enjoys ‘that … prerogative which we see to have been given always to all godly princes in Holy Scripture by God himself’ (Article 37).  

The only freedom that the secular ruler must respect, according to the Anglican Truth-claim, concerns the integrity of the ordained ministry: ‘we give not to our princes the ministering of God’s Word or of the Sacraments’.  However, the power of governance ultimately determines the ministry’s function.  Ministry administers the Word and Sacraments, but governance determines what Word and Sacraments actually are.

Secular rulers no longer claim a divine right to govern the Church.  The Monarch’s constitutional position is now justified on political, not religious, grounds.  The modern canon concerning the royal supremacy begins ‘We acknowledge’, not ‘We believe’ (canon A7).  Even this only applies in England.  Thus the ‘freedom’ now enjoyed by the modern Anglican Church has been obtained at the expense of its Truth-claim.  If the secular ruler has no divine right to govern the Church, who has?

In practice, modern Anglican governance is based on association with its ministry, albeit the test of association is different for clergy and laypeople.  The right of clergy to participate in governance derives from their office within the ministry, but not directly from their ordination.  The right of laypeople derives from such acts of association as attendance at worship and reception of holy communion, but not directly from baptism.  However, the divine authority for this governance-through-association is unclear.

Phillimore suggests that modern Anglican governance was settled as ‘a matter of necessity’ (Ecclesiastical Law, 2nd edition 1895, p.1776).   The ministry requires a power of governance of some sort in order to exist.  In a secular society, nobody can claim a better right than the Church’s own members.  If they did not exercise the power of governance, nobody else could or would and no form of ministry could continue.  Thus the freedom claimed by the Anglican Church is determined by what its present members judge necessary for its ministry.

The head of the legal office of the Church of England has recently echoed Phillimore’s words, describing the synodical system as an ‘experiment’  (Stephen Slack, ‘Synodical Government and the Legislative Process’ (2012) Ecclesiastical Law Journal, p.43)

The Church of England has sometimes envied the ‘freedom’ enjoyed by the Church of Scotland, without, of course, wishing to assume the presbyterian structure that is the justification for that freedom.  The danger here is that ‘freedom’ becomes an end in itself, not a means to an end.

Dignitatis Humanae makes clear that man’s duty to seek the truth is fulfilled in a social context, through collective worship, the education of children and dialogue.  Thus there is the closest possible connection between religious freedom and freedom of association.  Indeed it is hardly possible to practice a religion except in association with others.  Professor Rivers is therefore correct to warn against the tendency to regard the right to manifest a religious belief as primarily an individual right, which prevails over the right of the association to manifest their religious belief (‘The Inadequacy of Individual Rights’, p.318).

Rivers offers a courageous and powerful critique of state ‘neutrality’ in religious matters, and of so-called ‘religious equality’.  These superficially plausible terms conceal the pernicious secularist falsehood that only an irreligious state is capable of not discriminating against religious minorities.  As Rivers says, they also lead to ‘the suppression of difference’ (p.341), by such devices as banning the Muslim veil or the crucifix in classrooms.  ‘Religious equality’ leads to religious persecution.  ‘Equality’ itself becomes the religion of the state.

On the contrary, the relationship between freedom and truth means that secular governance cannot be completely ‘neutral’ in religious matters.  A judge must be impartial when deciding a dispute between members of the same Church, but judicial impartiality does not demand that the state be indifferent to Truth. 

Dignitatis Humanae acknowledges that religious freedom must be limited by ‘just public order’.  Freedom must not seek to predetermine or anticipate Truth, but it must be able to recognise Truth, even if dimly.  At any rate, it cannot treat manifest falsehood as if it were truth.  Thus a religion which practises coercion of persons who leave it or marry outside it is incompatible with truth and so is not entitled to freedom.