‘Christian Law’: A Principled Approach

Norman Doe, Christian Law.  Contemporary Principles (Cambridge University Press, 2013)

From Comparative Law to Communion

After writing The Legal Framework of the Church of England (Clarendon Press, Oxford, 1996), a comparative study of the laws of the Church of England and of the Roman Catholic Church, Professor Norman Doe turned his attention to the governance of the Anglican Communion.

For decades now there has been much comment about ‘splits’ or ‘schisms’ in the Anglican Communion.  This draws attention to an old question: how can the Anglican Communion really be a comm-union, a unity, when its members are politically independent of each other?  In the late 19th century the Privy Council observed presciently that the political separation of the Anglican Churches ‘is likely enough in the course of time to lead to divergencies’: Merriman v Williams (1882) 7 Appeal Cases 484 at 507.

Professor Doe first addressed this question in his book Canon Law in the Anglican Communion (Clarendon Press, Oxford, 1998).  He argued for the existence of a pan-Anglican law, notwithstanding the political independence of the member-Churches.  This Anglican law is ‘that corpus of principles, deduced from the substantive and procedural law of individual Churches, shared by the majority of members of the Anglican Communion’ (p.6), not necessarily by all them.

He developed this thesis in an article for the Ecclesiastical Law Journal (January 2003), which bore the unequivocal title ‘The Common Law of the Anglican Communion’.  Doe suggested that Anglican common law comprises

(1) the principles of governance (described as ‘canon law’) common to the Anglican Churches and

(2) the similarities between Anglican legal systems, i.e the similar constitutional structures of the different Churches (p.4).

This common law is capable of development: ‘Whenever a single [Anglican] Church legislates, it contributes to the common law’ (p.10).  The wider the agreement between the laws of the particular Churches, the more likely it is that the principle they express is part of Anglican law.

A difficulty with this thesis is that it bears no resemblance to the received understanding of common law.  Anglo-American common law is lawyers’ law.  It is administered by judges, not by legislative assemblies, and it is developed on the basis of precedent and legal learning such as previous decided cases and academic commentary thereon.

Legislative assemblies do not legislate on this basis.  Of course, there is some legislative ‘commerce’ in the Anglican Communion.  One Anglican Church may copy a piece of legislation originally made by another.  (Certainly many constitutional rules of the Church in Wales are copied from the Church of England.)  A resolution or report approved by the Lambeth Conference may inspire new legislation in a number of Churches.  But this is legislative history, not common law.

Doe may have resiled from his bold thesis to some extent.  His subsequent work refers to common principles rather than common law.  In 2008, the Anglican Consultative Council published Principles of Canon Law Common to the Churches of the Anglican Communion, which was largely Doe’s work, though done with the assistance of the Anglican Communion Legal Advisers Network (ACLAN).

In the 2008 publication Doe explained that ‘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’ (p.114).  So ‘common law’ is the same thing as ‘common principles’. In Christian Law, he explains that his common principles ‘are not themselves laws, they are principles of law’ (p.384).

Doe is refreshingly free of false modesty about his Anglican Principles.  He even compares it to the Roman Catholic Codes of canon law as a source of juridical principles (Christian Law, p.6).  However, the Roman Catholic Codes have the force of law, having been promulgated by the supreme legislator of the Catholic Church, the Pope.  Principles of Canon Law etc is merely an academic commentary and does not have the force of law (certainly not English law).

In Canon Law in the Anglican Communion Doe himself observed that ‘There is no formal Anglican canon law globally applicable to, and binding upon, member Churches of the Communion.  No central institution exists with competence to create such a body of laws’ (page 339 – why did it take him 339 pages to reach such an obvious point?)  Academic commentators and legal advisers, however learned, should resist the temptation to appoint themselves to fill this vacancy.

One of Doe’s collaborators in Principles, John Rees,made a more modest, adviserly claim for the project. It ‘set out simply to describe general patterns of Church life to be found in many (though not necessarily all) Churches across the [Anglican] Communion: its purpose is not to prescribe the form that Anglican Church life must take … Its aim is to inform, not to oblige’ (p.13).

While continuing his important academic work, Doe was appointed by the Archbishop of Canterbury to a commission charged with ‘maintaining the highest degree of communion that may be possible’ between the Anglican Churches (mandate), following the ordination as bishop of a practising homosexual.  This commission produced the Windsor Report of 2004 and also proposed an ‘Anglican Communion Covenant’.  His Grace subsequently conferred a doctorate of civil law (DCL) on the Professor.  (He could not make Doe a doctor of canon law, of course, that discipline having been abolished in England at the Reformation.)

Common Principles of Christian Law?

Doe’s quest for communion-through-legal-principle has now gone beyond the Anglican Communion to embrace the whole of Christendom.  After initial doubts, he persuaded himself that it is possible to identify common principles of ‘Christian law’, hence his latest book.

A remarkable feature of Christian Law is its explicitly religious quality.  The book seems to cross the boundary between legal study and ecumenical zeal.  Doe proclaims fervently that ‘dogmas divide but laws link Christians in common norms of action’ (p.10).  He throws down the challenge ‘for both theologians and lawyers to justify the continued significance of doctrinal disagreements when the laws of Churches converge so profoundly around norms of conduct shared by all Christians’ (p.7).

While not a common law, Christian law is a corpus of laws or other regulatory instruments of ‘approaching 100 Churches … across 10 Christian traditions … of 22 ‘Church families’ recognised as such by the World Council of Churches’ (p.vii).  Apart from its broader scope, the structure of Christian Law follows that of Doe’s earlier work, though Doe only manages to identify 50 common principles of Christian law, exactly half the number he revealed in the Anglican Communion.

As with the Anglican Communion, the common principles of Christian law are ‘induced from the similarities of the regulatory systems of churches’ (p.388).  A ‘common principle’  is said to be ‘a foundational proposition or maxim of general applicability which has a strong dimension of weight … expresses a basic theological truth or ethical value …’.

Whatever the legal learning and religious piety behind it, this approach is open to the criticism that it is unscientific.  It is fundamental to scientific research that any theory or hypothesis must fit all the relevant data.  The scientist is not at liberty to ignore data that contradict his preferred theory.

According to Doe’s own account, his common principles are constructed only from data selected by him according to the criterion of similarity.  Dissimilarities which might undermine or negate the common principles are disregarded.  There is no deception, of course, since Doe is quite open about his method.  But the method is still unscientific.

It is also fundamental to legal study that the lawyer (whether a judge in court or an academic) must study the law as it is, not as he might wish it to be.  It is perfectly valid (at least for academics) to criticise a particular law, identify its perceived flaws and argue for ways in which it could be improved.  But simply rewriting or editing the law, or cherry-picking from particular laws, in order to promote a religious objective falls outside the scope of legal study.

Doe’s definition indicates that the commonality of his principles lies very much in the eye of the beholder.  They are heavily influenced by cultural value judgement.  A principle is said to be a ‘foundational proposition’, ‘of weight’, and ‘expresses a basic theological truth or ethical value’, but who decides what is foundational, weighty or a basic value?  Different commentators will have different opinions.

Thus Principle 16(1) states that ‘A Church may employ an Episcopal, Presbyterian, Congregational or other form of government permitted by its conception of divine law …’.  This may be a valid short description of the different systems of ecclesiastical governance, but how is it a common principle?  A Presbyterian Church is governed in accordance with the Presbyterian principle.  A Congregationalist Church is governed according to the Congregationalist principle.  The Roman Catholic Church is governed according to the Roman principle (i.e the Bishop of Rome as the successor of St. Peter, the Prince of the Apostles).

Perhaps Principle 16(1) is saying that different Churches are at liberty to choose different structures, just so long as ‘the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’ (Article 19).  Such a principle may accord with English ecclesiastical law, but it is quite contrary to Roman Catholic law.

Many of the common principles are indeed hard to reconcile with Roman Catholic law.  For example, Principle 35(2): ‘A Church may practise private confession and absolution in the presence of an ordained minister to the extent that this is permitted by the law of a Church’.  In the Roman Catholic Church confession is required by divine law, not merely permitted by Church law.  Also Principle 36(5) ‘The unity of the Church universal is not destroyed by the denominational division of institutional Churches’.

There is also a rather Protestant tendency to define ecclesiastical structures in territorial and national terms (e.g Principles 1(2) and (3), 14 and 18), rather than according to the Catholic criteria of Apostolic succession or rite.  Paragraph 15(2) describes the papacy as an ‘international ecclesiastical office’, as if it were the ecclesiastical counterpart of the Secretary-General of the United Nations, or the President of the European Union.  It takes no account of the Pope’s petrine ministry (Code of Canon Law 1983, canon 331).

The Anglican-Protestant perspective is understandable.  Doe fairly acknowledges (p.viii) that he belongs to the Anglican Church in Wales (which he intriguingly describes as an ‘ecclesial community’, a Roman Catholic term applied to Christian communities that are not recognised as proper Churches).  However, the difficulty remains that his ‘common principles’ are hardly common to all Churches.  They are at most principles that he thinks should be common to all Churches.

Aside from Roman Catholic law, Principle 34, which concerns marriage, is hard to reconcile with the relevant English law.  It provides that

‘(3) To be married validly in the eyes of the Church, the parties must satisfy the conditions prescribed by Church law and should be instructed in the nature and obligations of marriage (4) [marriage] is celebrated at a public service in the presence of an ordained minister and witnesses, and it must be registered …’.

Yet in the case of R v Dibdin (1910) Probate 52, the courts made clear that the marriage contract may be validly made either in church or in a civil ceremony.  There is no obligation to be married in church.  Moreover, the validity of the marriage contract is determined by the secular court, not by the Church.  Canon B30 imposes a duty on the officiating clergyman to offer instruction to a couple who wish to marry in church, but it does not oblige the couple to receive such instruction.  Certainly it does not suggest that their marriage will be invalid without such instruction.

However, Doe’s liberal Anglicanism has its limits.  He affirms that marriage ‘is a lifelong union between one man and one woman’: Principle 34(2).

Law and Religion

The Professor’s distaste for ‘divisive’ dogma may reflect the influence of a form of ecumenism sometimes called orthopraxis, or ‘ecumenism from below’.  We cannot know the truth (at any rate, the whole truth), but we can act.  Religious dogmas, being concerned with truth, are therefore best avoided.  Instead we should engage with persons of different faith by means of practical action which will, eventually, somehow, bring us all together.  Dogmatic differences will then disappear or become irrelevant.

This approach is open to the objection that it confuses religion with politics, and that the whole point of religion is that it is dogmatic.  Be that as it may, the approach has no application to legal study.  The study of ecclesiastical law is open to all, regardless of religious belief.  It is perfectly possible to study Roman Catholic law without believing in the religious claim of the Bishop of Rome, and Scottish ecclesiastical law without believing in the Presbyterian principle.  However, it is still necessary to understand these principles, these dogmas, in order to understand the legal systems that are based on them.

Doe himself conceded in Canon Law in the Anglican Communion that ‘a majoritarian approach [to formulating common principles] is notoriously susceptible to criticism’ (op.cit, p.4).  It may be relatively easy to formulate common principles of Anglican governance, because the constitutional structures and rules of Anglican Churches are undoubtedly very similar.  Moreover, the modern Anglican Communion is the result of involuntary political separation, due to events beyond the control of the Churches, not of any religious division.  However, even in relation to the Anglican Communion, common principles may still be tendentious to some extent.  Notwithstanding the caution expressed by John Rees, they will inevitably reflect the author’s view of how the Anglican Communion ought to be governed.

The reservations expressed here about Christian Law apply only to the 50 common principles in the book’s appendix (pp.388-98, just 10 pages) and to the method adopted in formulating them.  The book contains much interesting material on ecclesiastical governance.  As with all Professor Doe’s work it is based on formidable erudition.  His work on the Anglican Communion obliged him to study the constitution of each of the member-Churches, about 44 in all.  His research for Christian Law involved ‘a vast amount of material from 100 separate legal systems’ (p.10).  Such breadth of study demonstrates qualities of patience and dedication which the author of this blog totally lacks.

Nevertheless the point must be made that law and legal study do not provide a shortcut to Christian unity.  Legal study can assist the ecumenical cause, but only if its autonomy and method are respected.  Faith and reason are not incompatible but they are distinct.  Comparative legal study should be just that, a study of the laws or rules of different Christian communities.  The source material should be studied holistically, addressing differences just as much as similarities.  Indeed the differences are usually more interesting to study than the similarities.