Cracking the Code of Canon Law: Comparative Ecclesiastical Law

by Philip Jones

The first rule of studying English ecclesiastical law is, or should be, that English ecclesiastical law is not canon law.  If this rule is neglected, the student risks getting lost in the middle ages, or even in biblical times, and will only with difficulty find his way back to 21st century England.

The dictum of the House of Lords in R v Millis (1844) 8 English Reports 641 clearly states that ‘The canon law of Europe does not, and never did, as a body of laws, form part of the law of England’ (p.898).

Lord Chief Justice Hardwicke’s warning against confusing ecclesiastical law with ecclesiastical history should also be remembered: ‘The history of the ancient councils of this island … furnish very little materials towards fixing the point of law as to the obligations of canons … it is safest for judges to proceed upon sure foundations which are

[1] the general nature and fundamental principles of this [English / British] constitution

[2] Acts of Parliament and

[3] the resolution and judicial opinions in our books,

and from these to draw our conclusions’: Middleton v Crofts (1736) 26 English Reports 788, at p.790.

If these dicta are not heeded, ‘canon law’ becomes a subspecies of historical or theological discussion which bears little relation to the statute law and common law which actually regulates the English ecclesiastical state or Church of England.

The study of ‘canon law’ may be a kind of legal variation on the famous ‘branch theory’ of the Church, which was favoured by the Tractarians and some ecumenically-minded Roman Catholics but rejected by the Papacy.  The laws or constitutional rules of Christian denominations, however diverse, and even of non-Christian religions, are all viewed as so many branches of the one tree (or vine) of canon law.  This is incorrect, for the reasons stated above.  English ecclesiastical law is a branch of English law, not of canon law.

Having said that, it is true, as the House of Lords expressly acknowledged in Millis, that canon law forms ‘the basis’ of ecclesiastical law.  Classical canon law undoubtedly had a great influence on English law as a whole, not just its ecclesiastical branch.  And the constitutional structure of the Church of England is derived from the late mediaeval Catholic Church.

In his book The Legal Framework of the Church of England (Clarendon Press, Oxford, 1996), Professor Norman Doe made the first detailed comparison of the laws of the Church of England and of the Roman Catholic Church.  There is now an annual colloquium of Anglican and Roman Catholic lawyers, whose deliberations are reported in the Ecclesiastical Law Journal.

It is good for ecclesiastical lawyers to study Roman Catholic law, provided they are clear what they are studying.  Classical canon law had a great influence on the development of modern law, but it was still a mediaeval phenomenon.  The Roman Catholic Church is now governed principally by a modern instrument, the Code of Canon Law 1983 (‘the 1983 Code’), which replaced the original Code promulgated in 1917.

The term ‘Roman Catholic law’ may be preferable to ‘canon law’, as it avoids the confusion that has grown up around the latter.  Two further points should also be borne in mind when making a comparative study of ecclesiastical law and Roman Catholic law.

(1) Differences of Legal Status

As well as remembering that English ecclesiastical law and Roman Catholic law are two different things, it is also important to remember the different legal status of the two Churches.  There are two principal differences:

1.  The Catholic Church claims to be a corporation (a so-called ‘moral person’) by virtue of divine law (canon 113.1).  It is ‘constituted and organised in this world as a society’ (canon 204.2).  Public international law, while it does not accept the claim of divine origin, nevertheless does recognise the Catholic Church as an autonomous political society, a ‘perfect society’, with the Pope as its ‘head of state’.  The United Kingdom officially recognises this status by maintaining diplomatic relations with the Holy See.  Pope Benedict XVI made a state visit to the United Kingdom in 2010.  The Church of England, by contrast, is merely one part of a political corporation or perfect society, being the ecclesiastical branch of the English or British state.

Roman Catholic law should therefore, prima facie, be compared with English (or British) law as a whole, not just with that part of English law that regulates the Church of England.  Because it regulates an entire perfect society, not just a part thereof, Roman Catholic law is concerned with subjects that in England are regulated by secular law.  English ecclesiastical law is necessarily much more limited in scope.

The relationship of English ecclesiastical law to secular law is clearly different from that of Roman Catholic law to secular law.  Ecclesiastical law is itself a part of secular law, in the sense that it is part of the law of the state and derives its authority from the state.  Roman Catholic law, by contrast, is independent of any state law and has a different source of authority.  This should be remembered when discussing the relationship between divine law and human law.  If the two Churches have a different relationship to human law, they will also have a different relationship to divine law.

2.  The Catholic Church lacks territorial jurisdiction.  As a perfect society, the Catholic Church resembles a nation-state.  Unlike a nation-state, however, it is not co-extensive with a particular territory and so, apart from the tiny Vatican territory, has no territorial jurisdiction.  It exists under many different regimes, each with their own laws, some of which may be deeply hostile to it.

Some canons of the 1983 Code therefore resemble a kind of unilateral concordat, asserting the Church’s rights against the states in whose territory it exists.  For example, the Catholic Church claims the right ‘independent of any human power whatsoever, to preach the Gospel to all peoples’, and ‘always and everywhere to announce moral principles’ (canon 747).  To this end it claims rights, inter alia, to train or ‘form’ its clergy (canon 232), to establish schools and universities (canons 800.1 and 807), and to acquire and deal with property (canon 1254.1).

It is difficult to think of any similar provisions in English law.  Canon 800.1 provides that ‘the Church has the right to establish and direct schools …’.  Yet it would be rather absurd to have a British law which provided that ‘the United Kingdom has the right to establish and direct schools in the United Kingdom’.  The law assumes the United Kingdom’s jurisdiction over its own territory.

Canon 412 makes provision for the governance of a diocese whose bishop has suffered ‘banishment [or] exile’.  Needless to say, there is no equivalent provision in English ecclesiastical law.  Ecclesiastical law trusts the secular state to protect bishops from such indignity.  Similarly, the 1983 Code confirms the Pope’s power to appoint cardinals in pectore, i.e in secret (canon 351.3).  Church authorities may permit marriages to be solemnised in secret (canons 1130-33).  The obvious reason for this secrecy is the protection of the individuals involved, and of the Church’s position in relation to hostile regimes and cultures.  Again, there are no comparable provisions in English ecclesiastical law, because ecclesiastical law trusts in the protection of the secular state.

In contrast to the global character of the 1983 Code, English ecclesiastical law is local and territorial in scope.  All Church of England Measures conclude with a provision as to the ‘extent’ of the Measure.  This provision invariably states that the effect of the Measure is limited to the provinces of Canterbury and York, though allowing for its application to the Channel Islands and the Isle of Man.  Certain provisions in Measures also apply to the Diocese in Europe.

(2) A Little Knowledge is a Dangerous Thing!

English ecclesiastical lawyers should be aware of the limitations of studying the 1983 Code.  All but the most learned of them will require an English translation of the Code.  However, the official language is Latin.  A commentary warns that ‘every translation should be handled with caution’, because it lacks official approval (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.30).

Another hazard for English lawyers is the deceptive simplicity of European codes of law.  The 1983 Code is a single document and it is published (on paper) in the form of a little book that can fit into a pocket.  The English ecclesiastical law on a particular subject is likely to be voluminous, minutely detailed and perhaps scattered among a number of different Acts of Parliament, Church Measures and other forms of legislation.  What a relief to turn to the 1983 Code and find the same subject dealt with in a few short consecutive paragraphs.

Yet the 1983 Code is not self-sufficient.  It provides that all canons which reproduce the pre-1983 law ‘are to be assessed in the light … of canonical tradition’ (canon 6.2).  Such method of interpretation may not be so different from the interpretation of English law, which has its own ‘canonical tradition’.  Previous statutes, decided cases and academic commentary may need to be referred to in order to arrive at the correct interpretation of a canon of the 1983 Code, just as of a particular Act of Parliament.  The difference is that English lawyers will be unfamiliar with the Roman Catholic canonical tradition, and the tradition will be almost entirely in Latin and languages other than English.

The 1983 Code makes clear that Roman Catholic law is also found in a number of other sources besides itself, such as concordats with states (canon 3), special rights and privileges granted to individuals and corporations (canon 4) and customs, both universal and local (canon 5).  It confers extensive powers on bishops, either individually or in local conferences, to legislate for their own dioceses.  Local secular laws may also be ‘canonised’, in effect treated as part of Roman Catholic law (canon 22).

Nor is the 1983 Code the only Code of the Catholic Church.  It applies only to the Latin Church (canon 1).  The Oriental Rite Churches have their own Code of Canons, which was promulgated in 1990 (‘the 1990 Code’).

A Suggested Practical Approach

An English lawyer may be content to study the 1983 Code simply by reference to its Table of Contents (Books, Titles, Chapters).  However, it may be helpful to approach the Code by reference to English law instead.  Ignore the Table of Contents to start with.  Instead, divide the canons into 3 categories, as follows:

(1) subjects which correspond to English secular law.   (The index to Halsbury’s Statutes provides a useful list of subjects of English secular law. )

(2) subjects which correspond to English ecclesiastical law and

(3) subjects which correspond to neither (1) nor (2).

The canons of the 1983 Code that fall into categories (1) and (2) can then be grouped according to the particular subject of English law.  For example, in category (1)

Administrative and Constitutional Law – canons 16.3, 34-62, 63-75, 130-33, 135-144, 1400.2, 1732-39

Damages / Distress / Restitution – canons 128, 1496-1500, 1651, 1653-55, 1729-31

Judgments – canons 16.3, 1426, 1472, 1593.2, 1607-38, 1641-42, 1644-48, 1650-52

Statutes – canons 6-13, 14-15.1, 16-18, 20-21, 29-33, 1344

Examples of subjects in category (2)

The Ordained Ministry – canons 207, 265-8, 273-4, 375-6, 835.1-3, 1008-9

The Bishop: Pastor, Minister and Ordinary – canons 375-6, 381, 383.1, 384-90, 395, 403.1, 408, 410, 763, 771.2, 782.2

Pastoral Reorganisation – procedure – canons 515.2, 516.2, 518

Pastoral Reorganisation – ministry – canons 517, 520, 526, 536, 543-45, 548-50, 564, 566, 568, 571, 813

Diocesan Reorganisation – canon 431.3

As far as possible, try to avoid entering the same canon (or paragraph of a canon) into more than category or subject.

There are more canons on marriage in the 1983 Code than on any other subject.  In England, the validity and subsistence of the marriage contract are now matters of secular law.  Ecclesiastical law is concerned only with the marriage ceremony.  For comparative purposes, it is therefore advisable to make a similar division of the 1983 canons on marriage, again as far as possible.

The subjects of category (3) may be either secular or ecclesiastical in character.  For example

Dispensations – canons 85-93

Juridical Acts – canons 124-8

The College of Bishops – canons 330, 336-7, 339, 341.2, 749.2, 756.1

The Papacy – canons 64, 68, 72, 331-5, 338, 340-1, 355.1, 358, 360-7, 749.1, 756.1, 1075, 1142, 1273, 1403-6, 1417, 1442, 1629, 1698-9

The Synod of Bishops – canons 342-8

Most of the canons of the 1990 Code are simply copied from the 1983 Code, and so do not require separate study.  However, the 1990 Code is of interest on account of the distinct structures and governance of the Oriental Catholic Churches.  Also, the 1990 Code includes some alterations of the 1983 Code, presumably by way of improvement.  For example, the 1990 Code expands the provisions of the 1983 Code concerning arbitration (see canons 1713-16 in the 1983 Code and canons 1168-84 in the 1990 Code).

Studying the 1983 Code according to the method suggested, with the assistance of an English-language commentary (such as that of Messrs Coriden, Green and Heintschel cited above, though there are others) and with reference to the official Latin to check the meaning of significant words, will not turn an ecclesiastical lawyer into an instant canonist.  However, it will enhance the study of English ecclesiastical law, and secular law too, by clarifying the law’s characteristics, its scope, its strengths and weaknesses.  It may assist the ecumenical cause in a small way, as the annual colloquia demonstrate.  And it is an interesting and enjoyable study in its own right, giving insights into the governance of the Roman Catholic Church, and into the European civil law tradition.  A little knowledge need not be a dangerous thing, so long as it is acknowledged as such.