Ecclesiastical law

Category: Comparative Ecclesiastical Law

A Decade of Blogging

On how to write: ‘Make notes, make notes – until your notes are shot through with boundless hope!‘ (Jean Guitton, Journals)

And the effects of ageing upon scholarship: ‘a growing distaste for accuracy, a wider and wider canvas, a life of conferences and pious platitudes‘ (Angus Wilson, Anglo-Saxon Attitudes)

This blog was created towards the end of March 2012, 10 years ago now. It seeks to explain English ecclesiastical law by

(1) succinct narratives of the law on particular subjects (e.g baptism, preaching, the marriage contract, Sunday worship, the diocesan board of finance)

(2) clarifying particular points of law (e.g the lay rector’s obligation to repair the chancel, the legal effects of consecration, the Monarch’s ecclesiastical title, jurisdiction to decide the boundaries of Church property, the difference between binding precedent and mere guidance)

(3) discussing the legal implications of a particular case or event (e.g a vicar’s refusal to baptise the child of unmarried parents, a mixed marriage, the suspension of a bishop)

(4) assessing a particular piece of work, such as a judgment, report, book or article.

The blog has never attempted systematic topicality, i.e tracking new legislation, judicial decisions and legal commentaries. The author lacks both the time and, to be honest, the inclination for such work. Instead the blog depends on thought and inspiration, being moved by the spirit to write about a particular issue, regardless of whether it dates from Biblical times or just yesterday.

The blog Law and Religion UK, which started about the same time as this blog, is truly formidable in its systematic and almost daily coverage, not only of ecclesiastical law, but, as its title implies, all kinds of interaction between law and religion. This blog has for years been indebted to the Law and Religion blog both for information and ideas.

However, the narrow scope of this blog was not chosen out of laziness. On the contrary, it seeks to counter a lazy treatment of the subject. Discussion of ecclesiastical law is bedevilled (perhaps literally!) by 2 opposite errors. Since the 19th century, ecclesiastical law has been widely misunderstood as a branch of ‘canon law’. This reflects the influence of romantic mediaevalism. In the present 21st century, it is increasingly treated as a branch of human rights law, a reflection of secularist and agnostic influence.

Ecclesiastical law is a branch of English law, not of canon law. Like secular law, it comprises legislation, i.e written statutory law, and unwritten common law. The only source of authority for both written and unwritten ecclesiastical law, no less than for secular law, is the Crown. The House of Lords made clear the distinction between ‘the King’s [now the Queen’s] ecclesiastical law’ and ‘The canon law of Europe [which] does not, and never did, as a body of law, form part of the laws of England’ (R v Millis (1844) 8 English Reports 641 at p.688).

Ecclesiastical law and canon law may profitably be studied together (and are studied together in this blog) for comparative and contextual purposes. However, the student who fails to understand the difference between the 2 subjects will never really understand either.

The function of ecclesiastical law is the administration of the Christian religion by the state. It is the counterpart of secular constitutional and administrative law. As such it requires a freedom or independence analogous to judicial independence, i.e freedom from interference by other state agencies. It may also require the support of other state agencies.

Neither judicial independence nor ecclesiastical independence is absolute. Both are subject to Parliament. And the ecclesiastical function is limited by ‘the constitutional rights of all [Her] Majesty’s subjects’, i.e by their human rights (cf Church of England (Assembly) Powers Act 1919, s.3(3)). So there is a common frontier between ecclesiastical law and human rights law, and again, some joint study may help avoid demarcation disputes. But they are still different subjects.

Being able to self-publish, at the click of a mouse, without having to wait for anybody else, has been a wonderful emancipation. However, any regular readers of this blog will be aware that its output has fallen sharply in recent years. Whereas posts were formerly published at a rate of 1 or more every month, they now barely average 1 in every 2 months. Just 1 post was published in the whole of 2020.

Ecclesiastical law offers limited blogging material. It does not change very often. Much of the legislation is rather dull and obscure, lawyers’ law, providing little food for thought. The most important piece of legislation in the last decade was, of course, the Bishops and Priests (Consecration and Ordination of Women) Measure 2014. Nothing dull or obscure about that. Yet the Measure is scarcely mentioned in this blog, because, whatever its political and religious significance, its few lines do not seem to raise any major legal or constitutional issue (at least, none apparent to the present author).

Thinking and writing become harder with age. There are ever-present temptations to

(1) rehash, and / or

(2) become a ‘keyboard warrior’, descending into the slightly sordid arena of ecclesiastical controversy or churchy politics.

But the present intention is to follow the wise advice quoted above – continue to make notes, and hope for inspiration for future blogposts, even if only on an occasional basis.

Grateful thanks are due to the aforementioned Law and Religion blog. Also to 2 highly informative blogs from rather different Anglican traditions, Thinking Anglicans and Ancient Briton, whose occasional references to this blog have considerably increased its modest readership. And, last but not least, to all readers of this blog.

Confession: Sacrament, Secrecy and Safety

Church of England Report of the Seal of the Confessional Working Party (March 2018)

The Report discusses the proviso of canon 113 of 1603, which concerns the practice of private confession.

Alone among the 141 canons of 1603, the proviso was not repealed in the 1960s.  It is now somewhat untidily appended to the revised canons.  According to an earlier report, Church and State (1970), the reason for retaining the proviso was a fear that any revised canon might be contrary to the secular law of evidence (the duty of a witness to tell ‘the truth, the whole truth and nothing but the truth’) (pp.58-9).

The proviso of canon 113 states that

‘if any man confess his secret and hidden sins to the Minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we … do straitly charge and admonish him [i.e the Minister], that he do not at any time reveal … any crime or offence so committed to his trust and secrecy …’.

The new Report seeks to address concerns that the 1603 proviso may cause avoidable harm to children, because it prevents confessors from reporting sexual abuse confessed to them, and also protects abusers from justice.

However, as the Report notes, the rule of secrecy in the proviso is not absolute.  The proviso does permit a confessor to reveal ‘such crimes as by the laws of this realm his own life may be called into question for concealing the same …’.

This is a reference to confessions of treason.  Sir Edward Coke held that ‘the privilege of confession extendeth only to felonies … if high treason be discovered to the confessor, he ought to discover it [i.e disclose it], for the danger that thereupon dependeth to the King and the whole Realm’ (p.25)

The proviso is therefore a compromise between canon law and English law.  The famous ‘seal of confession’ comes from canon law (apparently the fourth Lateran Council of 1215).  However, it is limited by English law to a privileged exception that does not extend to the most serious crimes.

‘Privilege of confession’ is indeed a more accurate description of the 1603 proviso than that in the title of the Report.  The proviso is an exception to the general rule that wrongdoing should be publicly tried and punished.  ‘Seal of the confessional’ is a clumsy cultural appropriation from the Roman Catholic Church.  (A confessional is, of course, a box, a fixture or piece of furniture that was probably only introduced into Catholic churches after the break with Rome, and is certainly unknown to English law.)

The Roman Catholic Code of Canon Law 1983 (and its predecessor, the 1917 Code) refers to the ‘sacramental seal’ (sacramentale sigillum, canon 983(1)).  A comparative study of the Roman Catholic law concerning confession may illuminate the current controversy over the 1603 proviso.

The 1983 Code makes clear that penance (now commonly called ‘reconciliation’) is one of ‘the [seven] sacraments of the New Testament, instituted by Christ the Lord’ (canon 840).  It also strongly emphasises the obligatory nature of the sacrament:

‘Individual and integral confession and absolution constitute the only ordinary way by which the faithful person who is aware of serious sin is reconciled with God and the Church: only physical or moral impossibility excuses the person from confession of this type’ (canon 960).

The faithful are required ‘to confess serious sins at least once a year’ (canon 989).  All serious sins must be confessed ‘in kind and in number’, and ‘It is to be recommended … that venial sins also be confessed’ (canon 988).

The Council of Trent held that ‘the absolution of the priest is … not a bare ministry only … but is after the manner of a judicial act, whereby the sentence is pronounced by the priest as a judge‘ (14th session).  The 1983 Code provides that ‘In hearing confessions the priest … acts as a judge as well as a healer and … as the minister of Divine justice as well as of mercy …’ (canon 978(1)).

The confessor’s judicial function is exercised in the internal forum of jurisdiction.  The internal forum is the subject of a helpful commentary by J I Arrieta (Studia Canonica 2007, p.27).  Arrieta makes clear that juridical acts in the internal forum may be either

(1) sacramental (i.e absolution) or

(2) non-sacramental (e.g dispensations, commutations of penance).

The seal only applies to sacramental acts.  Non-sacramental acts are generally confidential, out of respect to the subject’s right of reputation (cf canon 220).  However, the right of reputation is not absolute in a non-sacramental case, so confidentiality may be withdrawn in certain circumstances.

This account indicates a radical difference between Roman Catholic law and English law.  Article 25 is clear that penance and the four other rites ‘commonly called sacraments’ are ‘not to be counted for sacraments of the Gospel … have not like nature of sacraments with Baptism and the Lord’s Supper [the Eucharist], for that they have not any visible sign or ceremony ordained of God’.

Thus the proviso of canon 113 concerning confession cannot be a sacramental seal, since there is no sacrament of confession.  As it is not one of the two sacraments ‘ordained of Christ our Lord in the Gospel’ (Article 25), confession and penance can be no more than one of the ‘rites of the Church ordained only by man’s authority’ (Article 34).

English law is also very clear that confession is always voluntary, entirely at the option of the penitent.  There is no obligation to confess even the gravest of sins.  Sir Lewis Dibdin, Dean of the Arches, observed in the case of Banister v Thompson (1908) Probate 362 that ‘the compilers of our liturgy … in the 16th century … proceeded on a very clearly defined principle.  They asserted the liberty and the responsibility of the individual … laying far greater emphasis on the duties of self-examination and of direct confession of sin to God’ (pp.381-2).

Canon C29 of the revised canons, which is entitled ‘Of the Ministry of Absolution’, continues to observe the 16th century principle.  Baptised persons must ‘confess themselves to Almighty God … that they may receive of Him … forgiveness … seeking forgiveness especially in the general confessions … and in the [general] absolutions … in the services of the Church’ (1).

However, private confession is offered to ‘any who … cannot quiet his own conscience, but requires further comfort or counsel … [to] receive the benefit of absolution … to the quieting of his conscience …’ (2).  It is also offered to ‘a sick person, if he feels his conscience troubled in any weighty matter’ (3). These provisions of canon C29 closely follow those of the Book of Common Prayer.

If private confession is non-sacramental and voluntary, a concession to human weakness, then English confessors cannot exercise any kind of jurisdiction in hearing confessions.  Their function is limited to advice and moral support to a penitent who seeks this.  Any absolution pronounced in the course of a private confession will be the same as the general absolution pronounced in public services.  (Just as Holy Communion is the same, whether administered publicly in church or privately at the sickbed.)

As the Report observes, confession in the Church of England may take place as part of a liturgical rite that resembles the Catholic sacrament (e.g in an Anglo-Catholic parish) or more informally, in the context of a pastoral conversation (cf p.9).  However, this does not justify treating the confessions differently, since they are equally non-sacramental and equally voluntary.

This discussion may suggest the following conclusions:

(1) the privilege of confession in English law is not the same as the sacramental seal in canon law.  The privilege of confession has always been a qualified one.

(2) the strictness of the Roman Catholic law concerning the seal of confession must be understood in the context of the Catholic doctrine that private confession is part of a Divine sacrament, reception of which is obligatory.  English law denies this doctrine.

(3) English confessors act as professional advisers and counsellors, regardless of whether they officiate in a liturgical or in a pastoral context.  They should therefore owe a similar duty of confidentiality to penitents to that owed by their secular counterparts to clients or patients.

(4) For these reasons, it would not be a radical new departure to permit, or even require, confessors to report a well-founded concern that a penitent presents a risk of serious harm.  Such a change of the ecclesiastical law would merely reflect the change of political priorities since the early modern period.  An overriding concern for the safety of the state (from treason) has been succeeded by a similar concern for the safety of children (from sexual abuse).

‘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.

Cracking the Code of Canon Law: Comparative Ecclesiastical Law

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.

Difficulties with the Term ‘Religious Law’

The suggested concept of an inter-religious ‘common law’ faces at least four difficulties:

First, it assumes what it seeks to prove.  It implies that there are principles and rules of governance common to all religions, Christian and non-Christian alike.  However, it is argued that the existence of such common principles and rules must be established first, by research.  Only then may it be legitimate to label them collectively ‘religious law’.  It is wrong to speak of a ‘religious law’ whose existence has not yet been established, relying only on the hope that future research will confirm its existence.

Second, it may give the misleading impression that Christianity teaches a divinely ordained legal order, as some other religions do.

Third, much ecclesiastical regulation is not law, nor is it particularly religious.  The Roman Catholic Church, the Church of England, the Church of Scotland and certain European Protestant Churches are indeed constituted by law, but most Anglican and Protestant Churches govern themselves by quasi-contractual rules which are not laws and do not claim to be.

Much ecclesiastical governance, whether by law or by quasi-contractual rules, is derivative, drawn from contemporary secular governance.  Thus it is not very religious in content.  There is not much point in persons of other religions studying ecclesiastical governance that is merely derived from secular governance.  They might as well study the relevant secular governance directly.

Fourth, the basis of all regulation within the Christian community is the Church (ecclesia) and the concept of ecclesia is unique to Christianity.  It is true that there is profound disagreement among Christians as to what ecclesia is.  Nevertheless, all Christian communities profess a belief in ‘the Church’, and regard themselves as, in some sense, a part of it.  All Christian communities and places of worship are described, at least colloquially, as ‘churches’.

The Roman Catholic Church does not officially accept that Protestant communities are Churches in the true sense.  However, it does accept that indefinable elements of the true Church are present with Protestantism.  It also acknowledges that Protestant Churches are churchlike (‘ecclesial communions’).  They resemble or imitate the Church, even though they are not the genuine article.

Thus a ‘religious law’ which neglects or marginalizes the concept of ecclesia will not have much relevance to the governance of Christian communities.  On the other hand, a religious law which is based on the concept of ecclesia is unlikely to have much to say to non-Christian religions.

It is argued that the phenomenon variously described as ‘religious law’, ‘Christian law’ or ‘canon law’ is best described as ecclesiastical governance (cf. corporate governance).  This term is broad enough to encompass the different legal regimes (ecclesiastical law, canon law, quasi-contractual rules) that apply to different Church communities, and yet does not ignore or blur the differences between them.