Ecclesiastical law

Month: October, 2014

The Spirit of the Liturgy

This post, like two others written recently, is not directly concerned with ecclesiastical law but with a subject that is close to it.  It is mostly an appreciation of a commentary with the above title by Cardinal Joseph Ratzinger (later, of course, Pope Benedict XVI, now Pope Emeritus).  The English translation was published in 2000 by Ignatius Press.  Ratzinger chose the title in tribute to a book of the same title published in 1918 by Romano Guardini, another German Catholic theologian.  The concluding comments on the Church of England and the Anglican Communion do not represent anything stated in Ratzinger’s work, but were inspired by reading it.

Liturgy and Land

The need and the duty to worship God require first of all a sacred space.  Moses’ quest for the Promised Land was a quest for space in which to worship God (pp.15-17).

Christian liturgy, like Jewish liturgy and pagan cults, is based on sacrifice.  Thus the sacred space, the place of worship, was never a mere meeting place or school for religious instruction but a ‘cultic space reserved for the Deity’ (p.62).

However, for a long time before Christ, there had been a growing dissatisfaction among Jews with the sacrificial system centred on the Temple.  The Qumran community and many hellenised Jews rejected this system (p.45).  The Church proclaimed Christ as the new Temple, and the Eucharist as the sacrifice and gift of Christ.

Liturgy in relation to Time and Space

Christianity, like Judaism, is primarily a historical religion, concerned with the relationship between God and man in history (p.24).  This is in contrast to more primitive religions which concentrate on the cosmos (sun, moon, weather-events etc).

Yet Judaism and Christianity also have a cosmic dimension.  The Redeemer (historical) is also the Creator (cosmic).  There must therefore be a relationship between liturgy and creation, as well as between liturgy and history.

The Bible relates that God created the world in six days and rested on the seventh.  Hence the seventh day became the day of worship (p.25).  Therefore worship begins when creation is complete.  The giving of the ceremonial law to Moses and the Tent of Meeting make the connection between creation and liturgy (pp.26-7).  Liturgy is the divinisation, or surrender, of creation to God.  The divinisation of creation has been studied by theologians throughout the Church’s history.  The late Teilhard de Chardin (1881-1955) is the most distinguished modern contributor to this debate (pp.28-9).

Christian liturgy is also cosmically oriented.  Christian churches have from earliest times been built facing east, the rising sun being the symbol of the Risen Christ, just as synagogues were oriented towards the Temple (pp.64, 68).

The nativity of St. John the Baptist is celebrated in midsummer (on 24th June, six months before Christmas), when the days begin to shorten, while the nativity of Christ is celebrated as the days begin to lengthen again (p.109).  The date of Easter is the Sunday after the first full moon of spring.  The date thus reconciles the solar and lunar calendars (p.100).

The date of Easter has led to the modern difficulty that Easter in the southern hemisphere occurs in autumn, not spring.  This demonstrates that the historical aspect of liturgy takes priority over the cosmic (p.104).

In modern times the cosmic orientation of the liturgy, especially the eastward position, has been undermined by an abstract universalism.  However, while it is true that God is accessible everywhere, His universality is known to mankind only through Revelation, which is a particular, not a universal, event.

Neglect of the eastward position, like a fixed date for Easter, may lead to neglect of the uniqueness of Revelation.  It brings other dangers too.  If the priest faces the people, he may appear to be more important than God.  The liturgy is reduced to a mere communal celebration or get-together, rather than a sacrifice (pp.77, 80).

Art and Music

The use of painting and sculpture in church was attacked by iconoclasts and Protestant reformers as an offence against the Commandment forbidding any ‘graven image’. However, the Old Testament records that Moses was commanded to make two cherubim of gold to cover the Ark of the Covenant. Early icons depicted the Resurrection against the backdrop of the Ark (pp.115-6).

The relationship between art and worship has never been very clear. The second Council of Nicaea (which met in 787) affirmed the use of sacred art, and repudiated iconoclasm, but the implications of this affirmation have yet to be fully worked out (p.134).

The author argues that a distinction must be drawn betweeen sacred art, which is directly related to the liturgy, and religious-themed art in general (p.134). A similar distinction must be drawn in liturgical music (p.147).

Music, like art, has a biblical basis (for example, in the Song of Songs), and the word sing is one of the most commonly used words in the Bible (p.36). While art generally serves the historical aspect of liturgy, music serves its cosmic aspect (pp.151-2).

Liturgy and Communion

Liturgy is an entire way of life, not merely a form of worship.  The Ten Commandments illustrate this point (p.18).  It is the liturgy that makes the worshippers into one people, a comm-union.  Even secular societies have unifying rituals of some sort (p.21).

Liturgical rites are Apostolic, because they originated in the places where the Apostles preached.  They are therefore ‘forms of the Apostolic Tradition’ (p.164).  Their Apostolic origin reinforces the point that, although Christianity is universal, it still has a particular historical origin, and ‘can never be separated from the soil of sacred events’.  The rites originated in Alexandria, Antioch and Rome (p.163).  The Roman rite was influenced by the Alexandrian rite.  There was also a Byzantine rite, which was derived from the Antiochene liturgy.  The Antiochene liturgy had a profound influence on all subsequent liturgical practice (p.161).  (It was at Antioch, of course, that Jesus’ followers were first called Christians.)

Being of Apostolic origin, liturgical rites are of universal (hence Catholic) application, embracing different cultures and languages and drawing them all into a relationship of communion.  Elements of popular piety may become grafted onto a Catholic rite, and hence become part of the rite’s organic development.  There is inevitably a certain tension here.  A rite must be sensitive to the local culture while remaining Apostolic, one and universal.

Liturgy and Scripture

Liturgical rites, like the Scriptures, are the work of human authors.  Liturgy ‘contains an essential exposition of the biblical legacy’ (p.167), though academic study and the Magisterium of the Church also play a vital role in this work of exposition.  The seat of Moses, or shrine of sacred books in the synagogue, was replaced in Christian churches by the seat or ‘teaching chair’ of the bishop (p.72).

The foregoing account indicates that the Catholic understanding of liturgy is radically different from the Protestant.  For the Catholic Church, the liturgy is a link to the Apostles and, through the Apostles, to Christ.  This link would still exist even if there was no Canon of Scripture (just as the Magisterium would still link the Church to Christ without the Bible).  In Protestantism, by contrast, the Church is entirely dependent on the Bible for Word and Sacrament.  Liturgy therefore cannot link the Church to Christ and the Apostles, because it is not part of the Bible.  For the same reason liturgy cannot be a source of communion between different particular Churches, even if a number of Churches use the same liturgy.

At the Reformation many Protestant Churches, including the Church of Scotland, even abolished liturgy altogether, because it is unscriptural.  With the rejection of Catholic liturgical tradition, the Bible became the sole basis of Protestant Christianity.  The consequence of this principle of sola scriptura was that Protestant faith was at the mercy of modern biblical exegesis, with no liturgical tradition to support it.  Its only defence was to take refuge in a simple-minded fundamentalism.  By contrast, Apostolic liturgy, and the Magisterium, protect the Catholic faith against the errors both of modern exegesis and of biblical fundamentalism.

The Church of England, of course, did not abolish liturgy at the Reformation.  On the contrary, the Book of Common Prayer retains many elements of the mediaeval Catholic liturgy, translated into sublime English.  The undoubted beauty and dignity of the Prayer Book liturgy, and its partial resemblance to Catholic liturgy, may well serve to obscure the Protestant principle of sola scriptura.  However, the 39 Articles are clear that the Church’s true identity depends on Scripture, and not liturgy.  Liturgy is only permissible to the extent that it is agreeable to Scripture, and it is based only on human authority and culture.

Article 25 makes the dichotomy between the ‘biblical’ sacraments and the ‘liturgical’ sacraments.  Baptism and the Eucharist (‘the Lord’s Supper’) are the only two sacraments ‘ordained of Christ our Lord in the Gospel’.  The other five ‘commonly called sacraments’ are indeed found in the liturgy, but they ‘are not to be counted for sacraments of the Gospel … for they have not any visible sign or ceremony ordained of God’.  The Eucharist is understood only by reference to what the Bible says about it, not what the liturgy says about it.

Article 34 is the principal authority on the place of liturgy in the Church: ‘traditions and ceremonies … at all times have been divers, and may be changed according to the diversities of countries, times, and men’s manners … Every particular or national Church hath authority to ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.

Modern Anglican governance follows Article 34.  The ‘Lambeth Quadrilateral’ of 1888 did not require acceptance of the Book of Common Prayer (or of any other liturgy) as a condition of Church unity.  The Worship and Doctrine Measure 1974, and the canons promulgated thereunder, provide only that new forms of service should be ‘neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’ (s.4(1)).  No mention of the Apostles anywhere.

The liturgical freedom conferred by the 1974 Measure, and its equivalents in other Anglican Churches, has led to a multiplicity of modern Anglican liturgies, and to the relative marginalization of the Book of Common Prayer.  A commentary on the Prayer Book, written by an Anglican bishop, acknowledges that uniformity of worship has given way to a mere ‘family resemblance’ between the different liturgies: see The Oxford Guide to the Book of Common Prayer (OUP 2006), eds Hefling and Shattuck at p.238, per Colin Buchanan.

The English Parish

Phillimore’s Ecclesiastical Law records an ancient dictum that ‘A parish is the place in which the people belonging to one church dwell’ (2nd edition, 1895, quoted at p.1638).  On this view an ecclesiastical parish has three essential elements, a territory (the place), a community (the people) and place of worship (the church).  However, a place of worship will require an incumbent minister, who will in turn require to be appointed and maintained.  A community will also require some form of governance.

It is therefore argued that a parish has 9 constitutive elements.  This is an attempt to identify and describe them, but not to provide a comprehensive account of the law by which they are regulated.  (That would require an entire book.)

1.  Territory

Blackstone describes a parish as ‘that circuit of ground in which the souls under the care of one parson or vicar do inhabit’ (Commentaries vol 1, p.107).  The English parochial structure remains strongly territorial in character.  This territoriality is, of course, the basis of the Church of England’s proud claim to be a truly national Church, with ‘no inch of territory … no place … beyond the reach of the spiritual ministrations of a priest or place of worship’ (L Paul The Deployment and Payment of the Clergy (1964), p.23).

The area of a modern statutory parish will now usually be indicated on a map or plan annexed to the scheme by which it is constituted (Mission and Pastoral Measure 2011, s.52(2)).  Every new parish must be named by its constituting scheme (s.31(2)).

Parishes are subject to extra-parochial places, which are defined as universities, colleges, schools, hospitals and other public or charitable institutions (Extra-Parochial Places Ministry Measure 1967, s.2(1)).  As their name implies, such places are outwith the parochial structure, even if physically located within the territory of a parish.  However, a person who resides in an extra-parochial place is deemed to reside in the parish which it abuts, and hence to be a parishioner.  Any uncertainty on this point is determined by the bishop’s council of the diocese (Church Representation Rules 1(3)).  Any uncertainty about whether a particular area or place is, or is within, a parish or extra-parochial place is determined by the Church Commissioners after consultation with the bishop (s.105(2)).

Independent mission initiatives may also operate within parishes.  Mission initiatives first received legal recognition under the Dioceses, Pastoral and Mission Measure 2007.  They are now regulated by the 2011 Measure (ss.80-84).  A mission is constituted by order of the bishop.  The objective of the mission should be ‘fostering or developing a form of Christian community, to promote or further the mission of the Church, or any aspect of it’.

If an ecclesiastical parish is understood as a territory, it follows that ‘parishioners’ may include persons who are not members of the Church of England.  Roman Catholics, Methodists and Muslims are obviously not members of the Church of England but they are still all parishioners, because they all live within the territory of a parish.

2.  Community

While English law defines the parish as a territory, Roman Catholic law defines it as a corporation.  According to the Code of Canon Law 1983, a parish is ‘a definite community of the Christian faithful’ (canon 515.1).  Thus, in contrast with English law, persons who are not members of the Church cannot be parishioners.  A commentary suggests that the word ‘parish’ is derived from a Greek word that originally meant ‘a pilgrim people’ (in contrast to the English idea of a settled community), and that ‘however important territorial factors are in parish organisation, what is really constitutive of the parish is its being a community of persons’ (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.416).

Despite its corporate character a Roman Catholic parish ‘as a general rule is to be territorial’ (canon 518).  However, personal parishes may be established if this is ‘useful’ (canon 518).  Thus Eastern rite Catholics within the jurisdiction of a Latin rite bishop may be constituted as a personal parish.  The Anglican Ordinariates comprise personal parishes of former members of the Anglican Communion.

As the churchgoing population has become more mobile, modern English law has extended the definition of a parishioner to include persons who worship regularly in the parish church but who do not live within the parish.  A non-resident lay communicant is entitled to have his name entered on the electoral roll of the parish if he has worshipped regularly in the parish church during the previous 6 months (Church Representation Rules 1(2) and (4)).  He also has the same right as a resident parishioner to marry in the parish church (Marriage Act 1949, s.72(2)).  The Marriage Measure 2008, as amended in 2012, extended the right to marry in the parish church to persons who can show a personal or familial connection with the parish or the church.

3.  Church

If a building is not already a parish church it cannot be legally constituted as such until

(1) the Commissioners approve it as ‘suitable’, and

(2) it is consecrated (Mission and Pastoral Measure 2011, s.41(2)).

‘Suitable’ is not defined further.  Canon law suggests that only a permanent place of worship should be consecrated.  The original Roman Catholic Code of 1917 forbade consecration ‘if it can be reasonably foreseen that a church will be turned to profane uses’.  Churches made of wood or iron were not supposed to be consecrated on account of their impermanent character (canons 1165, now abolished).

A parish has no right to a parish church.  Thus a new parish may be created even if it has no parish church (2011 Measure, s.31(4)).  A scheme may also provide that an existing parish church shall cease to be constituted as such (s.41(1)).  If there is already a church in the area of a newly-created parish, this may, but need not, be designated as the parish church.

However, a parish with no parish church must still have some place of worship.  If a parish has no church the bishop must licence a building, or part of a building, within the parish for public worship (s.43(1)).  Thus the bishop consecrates a permanent place of worship but licences a temporary one.  This rule seems to echo the canon law.

A licensed place of worship may also be designated the parish centre of worship (PCW).  Thus a building which is not a church requires to be both

(1) licensed for public worship by the bishop and

(2) appropriately designated by him

in order to become a PCW.  The designation of a PCW must be under seal (s.43(6)).

Although the bishop is obliged to licence a place of public worship he is not expressly obliged to designate a PCW.  S.43(3) suggests that a bishop may designate a PCW even if there is already a parish church.

4.  Benefice

While upholding the fixed territorial character of parishes, modern ecclesiastical law permits considerable flexibility of parochial ministry.  A single incumbent may have pastoral responsibility for more than one parish.  Contrariwise, a single parish may be under the pastoral care of more than one incumbent.

The former arrangement may be effected in one of two ways:

(1) the single incumbent may hold two or more benefices in plurality (2011 Measure, s.32)

(2) the benefices themselves may be united or merged into a single united benefice (s.31).  A distinction is therefore drawn between a parish and the area of a benefice.  Several parishes may share the same benefice.

A plurality is obviously a looser arrangement than a united benefice.  The bishop may permit the incumbent of a plurality to resign one or some benefices but not all of them (s.32(4)).  Also, on a vacancy in the benefices, the plurality may be terminated at the instance either of the bishop or one of the parochial church councils (s.32(2)).  A united benefice may not be dissolved in such circumstances, unless its constitution provides for this.

The latter pastoral arrangement may also be effected in one of two ways:

(1) In a group ministry, each incumbent is required to assist the other incumbents in the group ‘so as to make the best possible provision for the cure of souls throughout the area of the group’ (s.35(1)).

(2) A team ministry is a more radical departure from traditional parochial ministry.  It is a sharing of the cure of souls by two or more clergy within the area of one benefice (s.34(1)).  A team ministry comprises a team rector and one or more team vicars.  In a traditional parish a rector and vicar never work side by side.  Teams vicars are quasi-incumbents, though their offices are licensed, not beneficed (s.34(4).  A team vicar, or other member of the ‘team’, may be assigned a special cure of souls of part of the area of a benefice or a particular ‘pastoral function’ within the team ministry (s.34(8)).

Group ministry and team ministry are not mutually exclusive.  A group ministry may include a benefice which is constituted as a team ministry (s.35(6)).

If a benefice is vacant for a long time, a licensed priest-in-charge acts in place of the incumbent.

5.  Patronage

A right of presentation to a benefice, or advowson, was originally a right of property, a so-called ‘incorporeal hereditament’ similar to a right of way.  However, as a result of the Patronage (Benefices) Measure 1986, most advowsons have been severed from land (s.32).  Now they are merely the personal right of the patron.  Only rights of presentation attaching to benefices and bishoprics retain a connection to land.  Thus if an incumbent is ex officio the patron of another benefice, the right of patronage continues to be part of the incumbent’s benefice property.

The patronage of a statutory benefice or plurality should be provided in its constitution (2011 Measure, s.46(2)).  If the constitution is silent the right of presentation vests in the diocesan patronage board (s.46(3)).  The patronage of a team rectory and the appointment of a team vicar are regulated by schedule 3 of the 2011 Measure.

A patron’s title is now proved by registration on a diocesan register (1986 Measure, s.1).

The patron’s exercise of a right of presentation (as distinct from his ownership of it) may be suspended under s.88 of the 2011 Measure.  Hence the need for a priest-in-charge.

6.  Endowment

The mediaeval canon law discussed in the preceding post suggests that the parish church and the supporting endowment were originally inseparable, and that together they formed the basis of the ecclesiastical parish.  Blackstone held that the boundaries of a parish were originally determined by the appropriation of tithes to a particular church and incumbent (Commentaries, vol 1, p.109).  From the middle ages until relatively recently, incumbents resembled self-employed farmers, men of property who lived off the rents and profits of their glebe land, and, of course, tithes.

The case of Greenslade v Darby (1868) 37 Law Journal 137 suggests that the churchyard may be a kind of hybrid of church and glebe.  Like the church it fulfills a religious and parochial purpose but, like glebe, it is also a source of profit from cultivation.  The rector (who in that case was a lay rector, not an incumbent) therefore has the right to use the churchyard land for profit, albeit only to the extent that this use is not ‘unseemly or inconsistent with [the land] being consecrated’ (p.143).

Tithes were originally payable in kind (wood, grain, cattle, sheep, poultry etc).  Later, they took the form of a payment of money called the tithe rentcharge or corn rent.  The Tithe Act 1836 commuted almost all tithes into rentcharges.  Tithe rentcharge was finally abolished a century later by the Tithe Act 1936.

The Endowments and Glebe Measure 1976 finally severed the ancient connection between parish church and endowment.  Under s.15 of the Measure, all benefice glebe that had hitherto vested in the incumbent was transferred to the diocesan board of finance (s.15), and so became part of the diocesan glebe instead (s.45(1).  Modern incumbents therefore resemble salaried employees rather than gentleman farmers.  The diocesan board of finance is now responsible for the payment of clergy stipends (Miscellaneous Provisions Measure 2000, s.1(1)).  There is a national minimum stipend fixed by the Archbishops’ Council (Terms of Service Regulations 2009, reg 11(1)).  Pensions are also administered nationally by the Church of England Pensions Board.

7.  Parsonage

Although he is no longer master of glebe and tithe, the incumbent remains the nominal freeholder of the parsonage (the official residence of the benefice) even if his occupation of it now resembles that of a tenant or licensee of the Church.

The Parsonages Measure 1938, extensively amended by more recent Measures, and the Repair of Benefice Buildings Measure 1972 are the two principal statutes regulating parsonages.

Much of the 1972 Measure resembles a kind of statutory lease, stating the respective rights and duties of the Church and the incumbent towards the parsonage.  It regulates the incumbent’s occupation of the parsonage.  The 1938 Measure, by contrast, regulates dealings with parsonages between the Church and outside third parties.  It is principally concerned with the sale of old parsonages and the purchase of new ones.  Thus, while much of the 1972 Measure resembles a lease, the Parsonages Measure resembles a conveyancing contract and protocol.

Although the incumbent is freeholder, the Endowments and Glebe Measure 1976 confers a power of compulsory acquisition of the parsonage from him, if the Church considers that it is no longer necessary for his ‘convenient occupation’ of the incumbent (s.32).

A house that is built or purchased for use as a parsonage must be certified as such by the bishop (Parsonages Measure 1938, s.11).  The constitution of a benefice may, but need not, designate the official residence of the incumbent, or of a team vicar (Measure and Pastoral Measure 2011, s.45(1)).

An incumbent has no a priori right to a parsonage house, just as a parish has no right to a parish church.  However, under the new regime of ‘common tenure’ introduced by the Ecclesiastical Offices (Terms of Service) Measure 2009, other full-time stipendiary clergy and lay ministers are entitled to accommodation ‘for the better performance of [their] duties’ (s.4(1)).  A priest-in-charge of a vacant benefice will usually live in the parsonage (cf. 2011 Measure, s.86(4)).

8.  Churchwardens

The normal rule is two churchwardens to a parish, but the Churchwardens Measure 2001 permits a different number of churchwardens on the basis of local custom or special statutory authority (s.11).  Moreover, if a single parish has more than one parish church, or has a parish church and a PCW, there must be two churchwardens for each church or PCW (s.1).

If there is a team ministry for a parish containing more than one church or place of worship, the constituting scheme may allow for deputy churchwardens for each, and for the functions of churchwardens to be delegated to them (Mission and Pastoral Measure 2011, schedule 4.3(2)(d)).

9.  Parochial Church Council

Every parish must have a parochial church council (‘PCC’).  The constitution of the PCC is provided in the Church Representation Rules.  The PCC must include a certain number of lay members elected at the annual parish meeting by those enrolled on the electoral roll of the parish.

The Church Representation Rules permit parishioners to make certain variations to the structure of parochial administration.  Such variations may also be authorised under the Measure and Pastoral Measure 2011, but on a temporary, experimental basis only.  There are five particular variations:

(1) If a parish has more than one place of worship, the PCC may be specially structured ‘in such manner as to ensure due representation of the congregation of each church or place [of worship]’ (rule 18).  Thus each congregation will be separately represented on the PCC.

(2) More radically, a separate district church council (‘DCC’) may be constituted for the district of the parish in which a church or place of worship is situated.  A DCC need not be constituted for every district in the parish containing a place of worship, and it is possible to have both a specially structured PCC and one or more DCCs at the same time.

Variations (1) and (2) apply to a parish with more than one place of worship.  The other three variations depend on the benefice rather than the place of worship:

(3) There may be a joint PCC where two or more parishes share a single benefice or where benefices are held in plurality (rule 19).

(4) A team council may be established where two or more parishes are served by the same team ministry (rule 20).

(5) A group council may be established for the parishes served by a group ministry (rule 21).

However, notwithstanding these variations, each individual parish retains its own PCC at all times.