ecclesiasticallaw

Ecclesiastical law

Category: Divine and Human Law

1989

Ralf Dahrendorf, Reflections on the Revolution in Europe (London, 1990)

This post, an appreciation of the work cited above, admittedly falls outside the stated scope of this blog, but it refers to the important and topical questions of the future relationship of the United Kingdom and Europe, and the relationship of the Christian religion with both.

Lord Dahrendorf KBE, FBA (1929-2009) was born in Germany, the son of a social democrat, and spent part of his youth in a Nazi concentration camp.  As his titles indicate, he later took British nationality, and had an illustrious career as a European Commissioner and Director of the LSE.

This book, whose title alludes to Edmund Burke’s famous work, discusses the future of Europe after the momentous events of 1989, the destruction of the Berlin wall and of the communist regimes that lay behind it.

Communism

Marxism was based on a providential concept of history.  It taught that history had chosen the proletariat to overthrow the capitalist mode of production and create a new society.  From the start, however, Marxists were not content to rely on this impersonal, and supposedly inevitable, historical process, but engaged in political activism to to advance their new society.

Marxist theory actually had little support from history.  It confused the French revolution and the industrial revolution, which did not happen in the same place or at the same time.  There was no historical evidence for supposing that the proletariat represented a new force of production.

However, Marxist theory was plausible when applied to 19th century Russia.  Russia was economically backward, and had no powerful, wealth-creating middle class as Europe and America had.  The Party therefore seemed to be the only vehicle of economic progress.  Hence Marxism makes more sense in a third-world country (which tsarist Russia was) than in an advanced society.  Communism does not survive economic advancement.

Marxism is radically different from social democracy.  While Marxists sought to overthrow the state, social democrats wished to strengthen it.

The USSR (Union of Soviet Socialist Republics, the old Soviet Union) went through 2 phases:

(1) Stalinism, a state of permanent revolution backed by terror, then

(2) Brezhnevism, an authoritarian state in which a bureaucratic elite exploited the people.  There was a relative absence of terror, and official corruption allowed a black market to operate.  The black market provided some relief from poverty.

It is wrong to be nostalgic for the ‘high culture’ that supposedly flourished under communism.  High culture was merely a substitute for other values (e.g travel, politics, religion) which communism denied to people.

However, post-communist society will inevitably be a culture shock.  The correct response to the culture shock is to hold onto the sound cultural values of the past, while not giving in to nostalgia: ‘let the huge wave of [unfamiliar and unattractive change] roll over you, and make sure that you come up again once it has passed’ (pp.107-8).

The events of 1989 effected a reunification of language, as they removed any ideological divide.  After 1989, politicians, bureaucrats and intellectuals from across Europe, both East and West, ‘all used the same words and concepts, and spoke of the same things’ (p.11).  However, unlike the French and American Revolutions in the 18th century, 1989 did not produce any new ideas.

Freedom

The intellectual void created by 1989 must not be filled by a naïve democratic idealism.  There is no such thing as ‘government by the people’ (p.9).  This is a dangerous illusion, as it merely gives opportunity to extremists.

Nor does the future lie in free market fundamentalism.  It is no coincidence that many theorists of the free market are former Marxists.  Free market fundamentalism cruelly divides human beings into winners and losers.  Like communism, it raises false hopes and expectations that it cannot fulfil.  It takes no account of the manifold inequalities between human beings.  It complacently allows the strong to exploit the weak.  This is not only wrong in itself, it also risks political instability which gives totalitarianism its opportunity.

Robespierre held that a constitution gives freedom to citizens, whereas a tyrant only gives them bread (p.76).  This view is untenable.  Man does not live by bread alone, but nor can he live only by freedom or ‘values’.  However, a constitution which promises a right to work which it cannot deliver will become discredited.  Indeed a constitution ought to guarantee a right not to work, as a protection against forced labour.

Economic prosperity is a double-edged sword.  It may create a ‘feel-good factor’ that encourages acceptance of the status quo, but it may also breed discontent and radicalism.  A democracy that rests only on economic prosperity, like the old West Germany, is precarious.  Postwar British democracy, by contrast, remained strong despite decades of economic decline.

Political change is quicker, and in a way easier, than economic change: ‘economic changes cannot be introduced in a matter of months … economic reforms will without fail lead through a valley of tears.  Things are bound to get worse before they get better’ (p.77).

The difficulty, therefore, is that liberalising reform will be rejected if it is seen to cause economic hardship.  The best solution to this problem is to mitigate the inevitable hardship caused by economic freedom with a welfare state.

The author argues that all systems, including the free market system, are tyrannies.  Any form of utopianism, however well-intentioned, must be rejected.  Post-communist governance must therefore be a-systematic.  It must create an open society which is capable of offering ‘infinite possible futures, some of which compete with each other’ (p.37).

The Open Society requires 3 things:

(1) a constitution

(2) normal politics

(3) social foundations

Constitution-building is ‘the hour of the lawyers’ (p.79).  To be properly effective, a constitution requires an independent judiciary to enforce it.  The difficulty is that the judiciary is inherently the weakest of the 3 ‘powers’ of government.  It depends on the support of the executive for the practical efficacy of its judgements (p.81).  However, even a paper constitution, without an independent judiciary, has some small value.  The most tyrannical regime cannot deny what is written in its constitution.  Dissidents, and the international community, can still appeal to it.

A constitution should procure as much democracy as possible, a wide distribution of power (consistent with the ability of the government to govern), in order to minimise the risk of subversion by extremists.

Normal politics are ‘the hour of the politicians’.  The task of normal politics is to resolve, as far as possible, the inevitable tension between politics and economics.  Political reform is never popular if it causes economic hardship.  Normal politics is concerned to negotiate this tension.  Postwar West Germany provides the model for this.

Social foundations are ‘the hour of the citizen’.  These are all-important, as they give long-term stability to the Open Society, in bad times as well as in good (p.93).  They comprise ‘a multiplicity of groups and organisations and associations’ which exist outside the state, and hence protect society against the excesses of state power (p.95).  Social foundations include political parties, churches, universities, charities and small businesses.

The difficulty is that social foundations cannot suddenly be invented.  They tend to evolve spontaneously over time.  If they are artificially created and organised by the state, that will defeat their political purpose which is to be independent of the state.  Nevertheless, efforts must be made, somehow, to create social organisations outside the state.

On this view, the Christian religion or Church is both (1) a contributory to, and (2) a beneficiary of, the Open Society.  It contributes by providing one of the social foundations that gives the Open Society stability and legitimacy.  It also benefits from the religious freedom that the Open Society guarantees.

Europe

The author professes his hope for ‘a constitution of a united Europe one day’ (p.127), and for European monetary union (p.132).  Yet the Open Society is not easy to reconcile with a European superstate.  Both the democratic institutions and the social foundations on which the Open Society is based are likely to be of local or national origin and character.

The author’s point is that the Open Society must precede the European superstate.  Post-communist states must settle their constitutions, politics and social foundations first.  Only when these are sufficiently stable and mature can they be integrated into the European superstate.  Nevertheless the difficulty remains that a European superstate which lacks a democratic mandate and a basis in local communities risks causing alienation of the kind that facilitated the rise of 20th century totalitarian regimes in the first place.

This faith in internationalism and supranational institutions is rooted in a fear of totalitarianism.  Before communism there was fascism.  The experience of fascism suggests that nation-states cannot be trusted with the human rights of minorities within their borders.  The author quotes a survivor of the holocaust: ‘how fragile these human rights become when they no longer correspond with citizenship rights’ (p.125).  This attitude, though wholly understandable in a European context, is radically different from the Whig-inspired English trust in parliamentary sovereignty as the surest guarantee of liberty.

The author wrote a quarter of a century ago, a long time now.  What has happened to Europe since then?  Utopian democratic idealism seems to have been avoided successfully.  Economic liberalism, the market economy, has been universally accepted.  A former European Commissioner (also a former Marxist) is credited with the observation that ‘We are all Thatcherites now’.  The free market’s disregard of inequalities between human beings has been addressed not only by a social-democratic welfare state, but also by an ideology of so-called ‘equality’ reminiscent of that preached by communism.  The free market and the ideology of equality are both regulated, and the tension between them arbitrated, by supranational European institutions.

Christianity has been excluded from this post-1989 compromise.  The downfall of communism did not lead to a revival of Christianity, despite the efforts of the then Pope, St John Paul II (himself a native of a communist country).  His Exhortation Ecclesia in Europa (2003) presents a gloomy account of European apostasy, and there is little sign that matters have improved in the 12 or 13 years since he wrote it.  Post-communist Europe is also post-Christian Europe.

Thus the Pope’s appeal to include a reference to ‘the Christian heritage of Europe’ in the European Constitution was rejected (cf para 114).  (The British Constitution, by contrast, does make reference to its Christian heritage.) There has indeed been a reunification of language between the secular elites of Europe, but they all now speak a different language from that of traditional Christianity.  The Pope acknowledged (para 11) that the position of East European Churches and Christians has become much easier since 1989.  The position of West European Christians has become more difficult.

Communism preached the equality of all human beings, but it defined human beings by their relationship to the Party.  This produced tyranny, a flagrant denial of the most basic human rights.  Post-1989 equality does not refer to the Party, of course, and it is undeniably preferable to the evil communist version that preceded it.  However, post-1989 equality also rejects the unique truth of Christianity, holding that all religions are equally valid (and hence equally invalid).  In particular, it refuses to recognise ‘the notable gap between European culture, with its profound Christian roots, and Muslim thought’ (cf para 57).

It also rejects the Christian understanding of gender and marriage.  (The environmental (green) movement takes ‘equality’ a step further, by suggesting an equality between human beings and other created things (animals, plant-life, minerals).  It implies that there is nothing special about human beings.)  Pope John Paul’s successor warned that post-1989 equality has placed Europe ‘on the verge of a dissolution of our concept of man’ (Joseph Ratzinger, ‘Europe’s Identity’, Values in a Time of Upheaval 2005-6, p.148).

The relationship between religious faith and political constitutions is discussed in the post ‘Constitutions without Faith: the Good, the Bad and the Weak’, which is filed below.

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Constitutions Without Faith: The Good, the Bad and the Weak

Ecclesiastical law is the law which regulates the administration of the Christian religion.  It is a manifestation of the state’s acceptance both of (1) the Christian religion and (2) its own duty to administer that religion to its subjects.

Modern secular states, of course, tend to distance themselves from religion, regarding it as a private matter.  Yet it is easier to reject religion as the source and object of political authority than to decide on what ideology, ‘values’ or religion-substitute to put in its place.

In his famous work Introduction to the Study of the Laws of the Constitution (1885), Albert Venn Dicey identified certain conventions of the British Constitution, which he defined as ‘a body … of constitutional or political ethics’ (10th edition, 1959, p.417).  The genius of these conventions is that they bridge the gap between a legal structure that was settled in the (Christian) middle ages and the political concept of government that developed in the (secular) modern era after 1688. The theocratic mediaeval structure was left in place, but the principle of popular sovereignty was discreetly substituted for that of divine law.  God was not explicitly rejected by the Diceyan constitution, but He was tactfully eased out, or ‘kicked upstairs’, rather like a long-serving principal who is liked and respected by his colleagues but is nevertheless judged to have outlasted his usefulness.

Dicey’s conventions were based on the premise that the British Constitution is unwritten.  Moreover, when he wrote, popular sovereignty was not very democratic by present-day standards.  It was exercised by a small and relatively homogeneous electorate consisting only of men of property.  Less privileged men were excluded from the electorate, along with all women.

Two interesting contributions to the debate on constitutional authority (among many others, no doubt) have been published recently in legal journals.  The first is entitled ‘The Good Constitution’ (2012) 71 Cambridge Law Journal 357, by John Laws, better known as Lord Justice Laws, one of the more overtly secularist of Her Majesty’s judges (though he sits, somewhat incongruously, on the editorial board of the Ecclesiastical Law Journal).  His Lordship’s thesis on the relationship of the state to religious truth in the case of McFarlane v Relate Avon (2010) Industrial Relations Law Reports 872 is discussed in a blogpost entitled ‘Ecclesiastical Law and Equality’ which is filed below.

According to Laws, the object of the ‘Good Constitution’ is the common good, or ‘benefit of the people’ (p.568).  This in turn demands 2 ‘moralities’:

(1) the autonomy of every individual.  This is the ‘morality of law’, and is primarily the concern of the courts.

(2) the interests of the people as a whole.  This is the ‘morality of government’, and the concern of the legislature and the executive (p.572).

The Good Constitution is pluralist.  It must allow for ‘difference and disputation’ (p.568).  Democracy is justified on the basis that it serves ‘the imperative of pluralism’.  Democracy ‘is a means and not an end [because] it tends to promote pluralism and to disable would-be tyrants’.

The modern British Constitution, as analysed by Dicey, is based on the supremacy of Parliament.  Parliament is the legal sovereign of the nation, the electorate is the political sovereign.  In Laws’ view, the principle of Parliamentary supremacy has not (yet) been abandoned, but it is slowly yielding to a principle of constitutional supremacy, similar to that which obtains in the USA.  Constitutional supremacy means that certain fundamental rights are determined by the courts.  Hence ‘the British system [is] at an intermediate stage’ (p.570).

It is argued that this thesis misunderstands the relationship between pluralism and democracy.  Why is it ‘imperative’ for there to be difference and disputation in a society?  Democracy and pluralism are only possible if society agrees about more than it disagrees about.  Democracy will not succeed in a society which is fundamentally divided.  The history of Northern Ireland makes this point.

It could even be argued that the British Constitution is at a stage of fragmentation, rather than at an intermediate stage.  Parliamentary sovereignty was based on agreement as to fundamental rights.  Recent constitutional changes (e.g those concerning the right to marry and ‘equality’) may indicate that political consensus about rights has broken down.

There may also be a false dichotomy in Laws’ thesis between individual autonomy and public interest, and the functions of law and politics.  The work of politics does involve striking a balance between different ‘autonomies’, but so also does much legal process.  Most human rights are qualified rights only, not absolute.  A balancing exercise is therefore required to determine if rights have been infringed.  The most that can be said is that the courts apply a different balancing exercise from that of politics.

The Lord Justice’s thesis is strongly secularist.  It deprecates ‘the suggestion that the public good inheres in a single set of ideas that can be conclusively ascertained … [This suggestion] takes wing only as an article of faith, secular or religious’ (p.568).  A single set of ideas is dangerous.  It ‘offers … a spurious justification for suppression and arbitrary rule’.  Faith is tyranny.  The Good Constitution is therefore the opposite of the God Constitution.  The God Constitution is the Bad Constitution.

However, it is argued that democracy requires faith of some sort.  This is because democracy only works if there is general acceptance of certain values by the democratic community.  The Christian religion is the source of these values.  Democracy must therefore be faith-based.  A democracy cannot function within a plurality of values that are incompatible with each other.  Far from disabling tyranny, a plurality of incompatible values gives tyranny its opportunity.  Democracy becomes a charade, merely the tyranny of the majority over the minority (or indeed vice versa – the tyranny of a well-organised and articulate elite over the less privileged and less articulate majority).

It is true, of course, that a healthy democracy involves ‘difference and disputation’.  However, disagreements concern only the precise application of shared values in particular circumstances.  Democracy is an end, not a means.  It involves the expression and application of shared values.  The justification for a democracy is that the values of the democratic community are better than the values of a tyrant.  If democratic values are not better than those of a tyrant then democracy loses its raison d’etre.

The question of individual autonomy illustrates the difficulty with ‘pluralism’.  It is not possible to ascertain individual autonomy without making a faith-based or value-based judgement on what an individual is.

This may explain the recent controversies between secularism and traditional Christianity in which Lord Justice Laws has played such a distinguished role.  The problem is not human rights per se.  Everyone agrees that a human being has rights, but they no longer agree about what a human being is.

While this may not have been the author’s intention, ‘The Constitutional Imagination’ by Martin Loughlin (2015) 78 Modern Law Review 1 helpfully identifies the difficulties with the Lord Justice’s faith in a faith-less constitution whose subjects are somehow united only by being in perpetual disagreement with each other.  When juxtaposed with Laws’ ‘The Good Constitution’, Loughlin’s work might have been better entitled The Weak Constitution.

The governance of the state by written constitution is a modern invention, a creature of the Enlightenment.  The USA produced the first written constitution in the late 18th century.

The intellectual inspiration for modern constitution-making came from Hobbes, Locke and Rousseau.  Locke was the principal inspiration for the American constitution.  Rousseau inspired the post-1789 governance of France.

Locke argued that government was based on a social contract, according to which the people delegate the power of governance, for the better protection of their natural rights.  Certain natural rights of individuals are thereby relinquished for the sake of the common good.  This is the philosophy of the minimalist state.

Rousseau, by contrast, was the prophet of equality.  His social contract does not protect natural rights, but replaces natural inequality with political equality.  All people must be acknowledged as equal, but they also all have a duty to promote the greatest good of all.

Loughlin’s account indicates the innate weakness of modern written constitutions.  They have no basis in custom, history, nationality or religious belief, only in abstract philosophical values.  They are test-tube constitutions.

The abstract quality of constitutional rights also makes for a difficult relationship with the law: ‘there can rarely be a correct answer in law to any important constitutional question’ (p.15).

Indeed most written constitutions have not been very successful.  France has had no fewer than 12 constitutions since 1789!  The adoption of constitutions by totalitarian dictatorships has also undermined their credibility.  The success of the American constitution is ‘thoroughly exceptional’ (p.17).  (And it should be remembered that the American constitution was not successful enough to prevent a terrible civil war.  The American civil war also reinforces the point about the inadequacy of law to determine constitutional questions.  The civil war was fought, in part, over different interpretations of the American constitution.)

Constitutions face two challenges today:

(1) ever bigger government and

(2) ever increasing social diversity.

Nowadays government is expected to intervene more and more in society, in response to the political demands that are made on it for expenditure and regulation.  Increased social diversity (of race, language, religion, lifestyle etc) in turn creates a diversity of new political demands.

Political demands are represented as human rights, but there is little assertion of corresponding duties.  Thus human rights have become (1) politicised and (2) ever more difficult to reconcile with each other.  This gives rise to the danger of social and political fragmentation.

Early constitutions had a utopian character.  They asserted only a small number of fundamental rights.  They were concerned with the emancipation or improvement of humanity.

Modern constitutions, by contrast, are subject to much greater conflicting ideological pressures.  They must needs be concerned not with emancipation, but rather with integration, to hold state and society together.  Yet integration is hard to reconcile with individual freedom.

Religion and Politics

Joseph Ratzinger, Church, Ecumenism and Politics (New York, 1987, English translation by R Nowell)

This post is an appreciation of another commentary written by the former Pope, in which he explains the religious basis of ecclesiastical jurisdiction and the relationship of ecclesiastical jurisdiction to secular politics.

From its very beginning, even when it was just a tiny and obscure sect in 1st century Palestine, the Christian Church already claimed a public jurisdiction equal to that of the secular state, the mighty Roman Empire.  The Church has never existed, and never can exist, merely on the basis of a private contract between its members.  That would destroy its exclusive and universal claim of truth.

Martyrdom is essentially an assertion of the Church’s claim of equal public jurisdiction with the state.  The Roman state persecuted the early Church because the Church opposed the state’s totalitarian claim of jurisdiction with its own claim of truth.

The Roman Empire was long hostile to the Church, but eventually Christianity became the official religion of the Empire.  As the secular state was Christianised, so Catholic theology became more favourably disposed towards it.  In the middle ages this led to an excessively broad conception of the state: ‘the state could not be accepted within the limits essential to it of its profane nature’ (p.213).  (Lutheranism and Anglicanism continued the mediaeval trend at the Reformation, showing an even greater deference to the claims of secular authority.)

The result was a theocratic exaggeration of the secular state.  The truth of Christianity was misused to create an intolerant theocracy.  The state came to inflict the same hideous tortures and death on heretics and infidels that it had once visited on martyrs.

The modern secular state inclines to relativism rather than totalitarianism, denying that there is such a thing as truth.  It promotes political stability over truth.  Blasphemy is de-criminalised on the ground that it does not endanger the public peace.  Christians do not riot or rebel, so blasphemous denial of the truth of Christianity is OK.  Certain manifestations of free speech, by contrast, are criminalised on the ground that they do endanger peace and stability.

The Christian Church is essential to a humane, pluralist society precisely because it offers truth, and human beings cannot live without truth.  Democracy is the product of the Greek-Christian heritage, ‘and can therefore only survive in this basic context’ (p.215).  Contrary to the opinion of American ‘neo-conservatives’, democracy cannot simply be exported or transplanted into non-Christian cultures.

Ethical behaviour requires truth if it is to be truly ethical.  However, ethics and ethical behaviour are not truth per se.  On the contrary, ethical behaviour, though it is indeed the agent of good, is ‘always at risk … never perfect, and must always be striven for anew’ (p.207).  The most ethical behaviour can yet be mistaken.  The results of ethical behaviour are not divinely guaranteed (p.214).

If the distinction between truth and ethics is not respected, this leads to a false Christian messianism which usurps both the sovereignty of God and the autonomy of science, ‘a kind of moralism that replaces political and economic arguments’ (p.207).

‘Ethical’ false messianism is often expressed in terms of ‘the Kingdom’, as distinct from ‘the Kingdom of God’.  Talk of ‘the Kingdom’ without God suggests something man-made, ‘something for which we are working, which we are building’ (p.207).  Such a ‘Kingdom’ is a mere ideological construction, being nothing more than the opinions of individual Christians or groups of Christians on political and social questions.

Thus (1) authoritarian, intolerant theocracy and (2) ‘ethical’ false messianism are the two opposite errors that corrupt and distort the truth of Christianity.

The Divine Right of Kings

John Neville Figgis, The Divine Right of Kings (1896).

This post, and the one that follows it, depart somewhat from the usual subject-matter of this blog.  They are appreciations of commentaries by two outstanding Anglican writers.  Although they are not concerned with ecclesiastical law the commentaries address two subjects close to ecclesiastical law, the relationship between the Church and the secular state, and Christian morality.  

The author, a high Anglican clergyman, sought to address the position of the Church in the modern, and British, world at the end of the 19th century.  On one view, this had never been stronger.  The British empire was at its zenith.  The Church of England had followed in its wake to create the worldwide Anglican Communion.  However, the Church was also vulnerable.  The theocratic regime and theocratic assumptions on which it had been based since the Reformation had collapsed.  The British constitution was hardly less secularised than it is today.  Theories of natural law had become discredited in favour of a legal positivism.The Church of England remained ‘established’, but there was some agitation in favour of disestablishment, and the overseas Anglican Churches were all constituted on a voluntary basis.

While accepting that divine right theory has no place in the contemporary world, the author attributes to it the emergence of modern liberal democracy: ‘to the derided Anglican clergy of the 17th century are due many of the most cherished principles of modern life’ (p.213).  It was the achievement of divine right theory in England to effect a gradual and largely peaceful transformation from mediaeval theocracy to stable pluralist democracy.

Divine right theory emerged in the late middle ages, though its origins may be traced to the Bible and ancient history.  It was enthusiastically adopted by the Tudor regime in England.  Henry VII’s claim to the Crown was weak, and the Crown itself had been weakened by the Wars of the Roses.  Divine right theory was therefore an intellectual force for strong government and passive obedience thereto.  During the Reformation, it was employed to promote the Crown’s claim of supremacy over the English Church and to oppose the Pope’s own claim of divine right.  Its popularity revived in the later 17th century following the restoration of the Stuarts and the unsettling experiences of the English civil war and the Cromwell regime.  The theory inculcated the need for continuity in national life, and a ‘law-abiding habit’ regardless of social class.

Divine right theory teaches that ‘laws’ and ‘human rights’ are not enough by themselves.  Law requires a lawgiver, a sovereign, to make and enforce the laws.  The sovereign is, and must be, ‘technically arbitrary’ (p.241).  The author deprecates the ‘[impossible] dream of a perfect state with no power in it exempt from legal limitation’.

The sovereign need not be an hereditary monarch.  However, sovereignty cannot be explained in terms of a mere social compact.  The state is an entity that is native to mankind, not something artificially created by mankind.  As Burke taught, the state has an ‘organic character’, an identity and character of its own (p.251).  It therefore cannot be dismantled and reconstructed ab initio.

Sovereignty may be democratic rather than autocratic, but there is no sovereignty of the people in any modern state.  In Britain, Parliament is sovereign, not the electorate.  The electorate cannot be sovereign because it does not make and enforce the laws.  Its function is limited to electing those who do.

The modern secular state does not acknowledge the supreme authority either of the Pope or of a Calvinist presbytery.  Any clerical hierarchy within the state is subordinate to the sovereign.  The English state repudiated the authority of the Pope at the Reformation and also declined to accept a presbyterian regime on the Genevan model.  Instead it asserted ‘absolute competence to prescribe forms of religious belief … and … of ecclesiastical organization’ (p.202).

However, this totalitarianism was mitigated by the state’s ‘consent[ing] to be guided’ by the English hierarchy (p.202).  The clergy were the ‘experts’ on whom the state relied in all matters of religion.  Anglicanism compared favourably with Gallicanism, which ambiguously asserted a state sovereignty in political matters while admitting the ‘spiritual claims’ of the papacy, yet could not resolve the tension between political sovereignty and religious claim (p.112).

The essential function of a clerical hierarchy is to guarantee or protect the religious conscience.  Provided the state accepted the advice of the clerical ‘experts’ there was no need of a papacy or presbytery.  Once the state accepted the principle of religious freedom, that obviated the need for any clerical hierarchy at all.  Thus a religious ‘establishment’ is not essential in a free country.  A clerical hierarchy is only necessary where the state denies religious freedom to its subjects, or purports to determine religious questions for itself.

The course of history in the 2oth century, after the author wrote, makes it doubtful that the benign legacy he attributed to divine right theory has endured.  The positivist link between law and lawgiver rests on the assumption that sovereign and subjects share a common conception of what law is.  It assumes that the sovereign will always respect certain values, values which are derived from the Christian religion.  The atrocities committed by modern totalitarian regimes have shattered that assumption.  It is therefore harder to accept that law can be entrusted to any sovereign lawgiver.

Modern secularism has also challenged the assumption of a law based on Christian values.  The author’s conclusions on religious freedom look a little complacent (with the benefit of hindsight, of course).  The state should undoubtedly practise religious tolerance but it is questionable whether the state can ever be neutral in matters of religion.  Tolerance and neutrality should be clearly distinguished.  If the state affects a religious neutrality, it merely constructs a religion-substitute or ideology of its own, which takes the place of traditional religion, and which may be far from tolerant of religions which contradict it.

It is therefore arguable that a religious ‘establishment’ of some sort may be essential to religious freedom after all.  If religious freedom is to be respected the state ought to, indeed must, accept one religion as the religion of the state, while tolerating others.

Christian Morality

Hensley Henson, Christian Morality (1936), the Gifford Lectures of 1935-6.  Hensley Henson (1863-1947) was Bishop of Durham during the interwar period.

Jesus and Judaism

The earliest Christian preaching had a simple twofold message:

(1) the Resurrection of Jesus and

(2) a call to repentance (p.39).

The Gospel accounts of Jesus’ life (miracles, parables etc) came later (p.40).

However, the Gospels provide the mode of repentance: ‘it is … in the life and teaching of Jesus that [we] must find the supremely authoritative version of … duty’ (p.54).  For this reason, the historical character of the Gospels is ‘vital’ to Christian morality.

Christianity, hence Christian morality, ‘is unique in attaching vital importance to the personal character of the Founder’ (p.301).  It has always been part of Christian tradition that Christ was without sin.  Even non-Christians who deny Christ’s divinity, Resurrection and miracles are still prepared to accept His sinlessness (p.302).

Judaism anticipated Jesus’ teaching to some extent.  By the time of Jesus, Judaism was a ‘book’ religion, concerned with rules of behaviour more than with sacrifice: ‘the pharisees controlled the synagogue, the sadducees controlled the Temple’ (p.69).

As the Jewish religion became more personal and ethical, and less communal and sacrificial, it began to reach out to the pagan world (pp.72-3).  ‘Every synagogue became a missionary centre’ (p.74).

Christian morality, inspired by the teaching of Jesus, continued the moral trend of Judaism, but went further.  Jesus ‘stood at the parting of the ways’ of the two Judaisms, the nationalist and the universalist.  He also ‘broke the paralysing bonds of pharisaic legalism’ (p.84).

Specifically, Jesus advanced beyond contemporary Jewish morality in 3 respects:

(1) His message was universal, addressed to all humanity, not just to a particular race

(2) He opposed the ‘mechanical’ concept of duty taught by the pharisees and

(3) He was progressive in His attitude to women (p.99).

Tension and Genius

Christianity teaches that man is born to original sin, and yet contains an essential goodness, being made and loved by God.  Therein lies the tension between

(1) self-discipline (which is necessitated by original sin) and

(2) self-expression (which is demanded by essential goodness) (pp.190-1).

Jesus’ earthly life was partly ascetic (celibacy, fasting in the wilderness) and partly non-ascetic (turning water into wine, dining with worldly companions) (cf.p.192).  Christianity likewise has both an ascetic and a non-ascetic character.  Therein lies another source of tension.  All religions have an ascetic tradition (p.190).

The Sermon on the Mount ‘provides the most complete version of essential Christian morality which the Church possesses’  (p.254). However, it is not simply ‘a manual of conduct to be precisely followed’ (p.253).  Applying the principles of the Sermon to changing practical circumstances involves ‘the painful and repulsive necessity of learning and unlearning [to achieve] sound knowledge’ (p.290).

St. Paul’s letters show how Jesus’ teaching was applied in the earliest Christian communities.  Paul was personally ascetic, but he did not ask his Churches to imitate his lifestyle.  His pastoral advice to them is ‘sober practical admonition’ (p.94).  The early post-Apostolic Church had a rigorous penitential system, but this ‘could hardly ever have been more than theoretical’ (p.133).  Christianity had nothing in common with stoicism (p.147).

Morality consists of unalterable principles, which are, however, applied to ‘ever novel conditions of life’ (p.138).  The soundness of a principle is proved by its applicability to a new situation.  Thus Christian morality must be both unalterable and adaptable at the same time.  If it is not adaptable, morality is reduced to ‘an unnatural and impracticable idealism’ (p.149).

The genius of Christianity was that it ‘purified, stimulated and completed whatever in the world was congruous with itself’ (p.147).  Christianity prevailed because it ‘is alone genuinely natural’ (p.189).  Thus true morality consists in enabling people to become what they truly are.

This ‘unique genius of assimilation … distinguishes Christianity from every other religion’ (p.150).  The influence of Christian morality is shown in the fact that ‘Christian civilization has become in the modern world the norm of civilization itself’ (p.161).

Prevailing social custom and convention may be the chief enemies of true Christian morality (cf.p.44).  However, ‘Christianity ever stoops to conquer … acquiescence is … the weapon by which the Christian religion conquers the hostile forces in its secular environment, and slowly but surely introduces its own transforming spirit’ (p.275).

Sexual Morality

Early Christianity practised a strict sexual morality.  This was partly a reaction against contemporary pagan religion.  Pagan worship ‘was linked so closely with sexual licence that in Christian eyes the two were inseparable’ (p.133).

However, sexual morality remains at the heart of Christianity.  It cannot be dismissed merely as a reaction against pagan practices of 2000 years ago.  Hard though it may seem, Christian morality does demand ‘holding the animal passions … under the control of the higher instincts of man’s nature … at whatever cost of inner conflict’ (p.220).  ‘[T]he true law of [man’s] nature can only be his Creator’s Will.’

Jesus’ teaching on sexual matters was the most original aspect of all His teaching (p.199).  He was celibate, thereby constituting virginity as ‘the specifically Christian virtue’ (p.197, quoting Harnack).  He enjoined purity and condemned divorce (p.199).

The basis of Jesus’ sexual teaching is monogamy.  Its purpose is the protection of women and children, though also to serve ‘the deepening and sweetening of the man’s character which follows the birth of his child’ (cf.p.209).

However, the indissolubility of marriage is, on Henson’s view, a Christian ideal (p.202) rather than the legal characteristic which it became in the middle ages (p.200).  There is ‘no rule with respect to divorce which can properly claim to be … Christian’ (p.201).  The Christian attitude to divorce, above all, may illustrate the tension between unalterable principle and adaptable application.

The Lambeth Conference of 1930, which gave a guarded approval to artificial contraception, marked ‘a decisive breach with ecclesiastical tradition’ (p.217).  Earlier Lambeth Conferences had condemned the practice.  As Henson wrote elsewhere, the term ‘birth control’ is really just a euphemism for birth prevention.

However, the 1930 Lambeth resolution may be consistent with Christian morality, to the extent that it requires that ‘Christian parenthood … must imply a frank recognition of all sound and relevant knowledge’ (p.218).  This may mean that contraception, on Henson’s view, can be justified as an act of responsible parenthood, but not so as to create a new type of sexual relationship not involving parenthood. 

Social Morality

In the 19th century, responsibility for charitable relief (of poverty and sickness) and for education passed from the Church to the secular state, ‘a power plainly superior to the Church in [practical] effectiveness’ (p.251).  This has caused the Church, perhaps for the first time in its history, to support greater power for the secular state.  Historically, the Church has usually been in the position of demanding autonomy from the state, not wishing more power to the state.

The reason for the Church’s conversion to the cause of secular state intervention is, of course, the noble Christian aims of improving social conditions and relieving poverty and distress.  However, giving all responsibility for welfare and education to the secular state carries the danger of totalitarianism.  People will look to the state, not to the Church, for their moral guidance and ‘salvation’.  The Church itself will become secularised as a result.  It will have nothing left to do except to support the state, or indeed to criticise the state for not intervening enough in society.

Henson opposes a socialist emphasis on ‘equality’:  ‘Since men are unquestionably unequal, and the extent of their risks and labours varies indefinitely, equity itself authorises a large inequality of recompense’ (p.276).

Free-market capitalism is also preferable and superior to the slavery and feudalism which it replaced (p.276).  However, Protestant-inspired capitalism and the famous Protestant ‘work-ethic’ are too reliant on the ‘inferior morality’ of the Old Testament, with its dubious ‘association of divine favour and mundane prosperity’ (p.278).

R v Dibdin

(1907) Probate 57 and 101

This once-famous case concerned the Deceased Wife’s Sister’s Marriage Act 1907.  The 1907 Act permitted a man to marry his deceased wife’s sister (‘DWS’), and retrospectively validated any marriages with a DWS contracted before the Act came into force.  Moreover the Act permitted such marriages to be solemnised in church.

The religious difficulty with the Act was that an earlier Act, passed during the reign of Henry VIII, not only forbade marriage with a DWS, but described such a marriage as ‘against the law of God’ (p.79).  The doctrine of the Church of England held that marriage to a DWS contravened the ‘Levitical laws’ in the Old Testament.

The Rev Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had married his DWS.  For this refusal he was disciplined by the Court of the Arches, of which Sir Lewis Dibdin was then Dean.  He then applied, unsuccessfully, to the secular courts for an order restraining the disciplinary proceedings against him in the ecclesiastical court.

The proceedings in the Court of the Arches are reported as Banister v Thompson (1908) Probate 362.  However, the secular case is interesting in its own right, as it is probably the only case in which the secular courts have discussed at length the tension between Church doctrine and modern ‘permissive’ legislation (now more usually known as ‘equality law’).

The Divisional Court boldly sought to construe the divine law as well as the human law.  It concluded that marriage with a DWS was not against divine law.  One judge stated that, before the 1907 Act, such a marriage was ‘bad in law, not because it always was against the law of God, but merely because the statutes of the realm declared it to be unlawful’ (p.79).  He held that ‘this marriage, which before was contrary to the law of God merely because the [Henrician] statute condemned it as such, is so no longer’ (p.81).

Another judge reached the same theological conclusion: ‘the words ‘contrary to the law of God’ [in the Act of Henry VIII] cannot be meant literally … for the Pope … grant[ed] dispensations in these cases, and Henry VIII himself married under such a dispensation’ (p.97).

One judge suggested that the Act of 1907 had not disturbed the theological position: ‘The Act … give[s] the persons contracting such marriages their full civil rights [i.e human rights] but no more … It does not repeal the Act of Henry VIII which declared that such marriages were contrary to God’s law’ (p.88).

The judges of the Divisional Court was clearly reluctant to accept the possibility that an Act of Parliament could be contrary to divine law: ‘Were the meaning of the Act not what I suggest, it would provide … that a clergyman … might solemnise … a marriage contrary to the law of God, and this we must not lightly suppose Parliament to have intended’ (p.81).

The Court of Appeal largely agreed with the Divisional Court’s theological conclusions, adding that prohibition of marriage to a DWS ‘was not in accordance with the general practice of Christian countries and Churches’ (p.119 – in other words, such marriages were permitted in most other countries by the time the 1907 Act was passed). 

One Lord Justice even suggested something resembling a doctrine of parliamentary infallibility: ‘this right of individual judgment which created the Reformation necessitates some ultimate arbiter, for the opinions of men … will differ, and the state is the only possible arbiter’ (p.132).

Of all the judges who spoke in the case, only the Master of the Rolls, Cozens-Hardy, declined to enter the theological discussion.  Instead he took a clear positivist view that an Act of Parliament is the law and requires no further justification.  The judges’ function is merely to interpret and apply the Act, not to reconcile it with divine law.  Cozens-Hardy MR stated that ‘marriages … with [a] DWS were [fomerly] declared to be prohibited by God’s law … That was the then view of the Legislature.  It is not for any court to consider whether they were in truth forbidden by God’s law’ (p.107).

Mr Justice Darling probably had the clearest insight into the policy behind the 1907 Act: ‘in reality, Parliament had not any settled intention whatever, except … to legalize these marriages … perhaps desiring to leave altogether unsolved the many embarrassing questions of conscience … arising out of it’ (p.82).

Both courts affirmed that the Church and the clergy were subject to the 1907 Act, regardless of its consistency or inconsistency with divine law.  The Master of the Rolls stated that a marriage ‘is one and the same thing whether the contract is made in church … or before a registrar … the Established Church has never refused to recognize any marriage which by our law is valid as being otherwise than a good marriage for ecclesiastical purposes’ (p.109).

One Lord Justice remarked sternly that ‘No man has a right to become a clergyman of the Church of England who is not prepared to perform the lawful duties of that office … If the [performance of a lawful duty] would do violence to his conscience, he should abstain from entering holy orders’ (pp.129-30).

Tension between secular law and Church doctrine obviously becomes acute when the law obliges the Church to do something incompatible with its doctrine. 

The legislature’s solution to ’embarrassing questions of conscience’ arising from the solemnisation of marriage has been the insertion of a ‘conscience clause’ in the relevant Act, relieving individual clergy from the obligation of solemnising marriages which they regard as contrary to the Church’s teaching.  The conscience clause concerning the marriage of divorced persons in church is now contained in the Matrimonial Causes Act 1965, s.8(2).

This device seems to have avoided direct conflict in the century since Dibdin was decided.  In the Civil Partnership Act 2004, Parliament apparently inserted a conscience clause for the entire Church by providing that civil partnerships may not be registered on religious premises (s.6(1)).  This has recently been amended (s.6A, introduced by the Equality Act 2010, s.202).  However, there is no guarantee that secular authority’s delicacy towards embarrassed religious consciences will continue in the future. 

The attempts of the judges in the Dibdin case to reconcile divine law with an inconvenient Act of Parliament may well seem clumsy and confused.  Their modern counterparts apparently decline to acknowledge that there is a divine law (or at least they plead ignorance of it).  Any claim of divine law is treated as a matter of individual religious belief only.  The religious belief (not the divine law) is then required to be proved by evidence. 

This current attitude fails to appreciate that divine law is still incorporated into English ecclesiastical law to some extent (by the Worship and Doctrine Measure 1974, s.5).  Nor can the tension between divine law and human law be got rid of by simply denying divine law.  Secular authority may try to deny divine law, but it cannot escape religious belief and conscience, which are the human response to that law.  Judges who now try to reconcile this human response to divine law with secular law, while rejecting divine law itself, are likely to end just as clumsy and confused as their predecessors were in the Dibdin case.

Ecclesiastical Law and Equality

R (Johns) v Derby City Council (2011) EWHC 375 (Admin)

Mr and Mrs Johns were foster carers, whose Christian beliefs on homosexuality apparently conflicted with the Council’s ‘fostering standards’.  The administrative court declined to grant the declaratory relief that Mr and Mrs Johns had sought.

However, the case is of interest on account of the court’s thesis on the relationship of law to religion.  The court held that ‘well understood principles’ (para 36) show that

(1) English law ‘do[es] not include Christianity, in whatever form’ (para 39), and is ‘essentially neutral’ in matters of religious belief (para 41) and

(2) law and religion are strangers to each other, with the result that religious belief is always a question of fact to be proved by evidence (para 35).

Thus religious freedom and equality demand that the court be ‘neutral’ in religious matters (cf para 48).  Neutrality in turn demands ignorance.   The court cannot know anything of religious belief other than what is proved in evidence before it in the particular case.

This thesis does not sit comfortably with ecclesiastical law.  The court made the briefest of references to the existence of an ‘Established Church’, but did not stay to consider the legal implications of this.

The ‘Established Church’ is so called because it is constituted (i.e established) by law, English law.  The Church’s legal function is to administer the Christian religion in England.  The religion that it administers is defined by law.

The English law which principally defines Christian doctrine today is the Worship and Doctrine Measure 1974.  S.5(1) of that Measure provides that that doctrine is found in the 39 Articles, and the Book of Common Prayer (‘BCP’) and Ordinal of 1662 (collectively known as the ‘historic formularies’).  A Church of England Measure is primary legislation with ‘the force and effect of an Act of Parliament’ (Human Rights Act 1998, s.21(1) and Church of England Assembly (Powers) Act 1919, s.4).

The Worship and Doctrine Measure 1974 is therefore just as much a part of English law as the ‘equality’ laws.  The effect of s.5(1) is that the Church’s formularies are incorporated into English law, rather as the European Convention on Human Rights is incorporated by the 1998 Act.  This means that the doctrine found in them cannot be dismissed as merely the private belief of individuals.

The 1974 Measure further provides that all liturgy should be consistent with the Church’s doctrine, and that ecclesiastical officials, including ecclesiastical judges, may be required to make a formal assent or subscription to doctrine (s.5).

The court did refer to the ‘well-recognised divide between Church and state’ (para 41).  However, it may not have recognised the ‘divide’ correctly.  ‘The state’ comprises both the ecclesiastical state and the secular state.  It is wrong to identify the state with the secular state alone.  The Church / ecclesiastical state comprises those institutions and offices whose function is the administration of religion.  It may be described as the ecclesiastical system.  Just as the legal system exists to administer justice, so the ecclesiastical system administers religion.

Even secular law, not just ecclesiastical law, contains some recognition of Christianity.  The Monarch is required to ‘join in communion’ with the Church of England, under the Act of Settlement.  Bishops retain the right to sit in the House of Lords.  The Church (albeit with other ‘faith groups’) retains rights over the teaching of religion in secular schools.

The court’s ‘well-understood principles’ therefore require significant modification:

(1) English law is not ‘neutral’ in matters of religion.  On the contrary, the state continues to assert the right to define and to administer the Christian religion.  It is true, however, that the administration of religion is the function of the ecclesiastical state, not the secular state.  Secular judges are therefore correct to decline a responsibility which does not belong to them.  A secular judge who assumed a responsibility for administering the Christian religion would not be infringing any state ‘neutrality’, but he would be exceeding his constitutional authority.

(2) Law and the Christian religion, though they are not the same thing, are not strangers to each other.  Because the historic formularies are incorporated into English law, the existence of the Christian doctrine stated in them should not have to be proved by evidence.  Evidence will only be required where there is a dispute as to what the formularies teach on a particular matter.

The formularies affirm the Christian doctrine of sexuality (in the marriage service) and the moral law divinely revealed in the Old Testament (Article 7).  Certain passages might have been relevant to Mr and Mrs Johns’ case, that children should be brought up ‘in the fear and nurture of the Lord’ and ‘virtuously brought up to lead a godly and a christian life’ (marriage and baptism services).  Another passage holds that ‘My duty towards my neighbour  is … to keep my body in chastity’ (BCP catechism).

This last passage might have been relevant to the earlier case of McFarlane v Relate Avon (2010) Industrial Relations Law Reports 872, which clearly influenced the court’s ‘neutrality’ thesis in Mr and Mrs Johns’ case.  Mr McFarlane was dismissed when he declined on religious grounds to provide ‘psycho-sexual therapy’ to homosexual couples.  His claims of unfair dismissal and religious discrimination were dismissed.

Lord Justice Laws rejected the plea of a former Archbishop of Canterbury, who had supported Mr McFarlane, for the appointment of  ‘a specialist panel of judges … [with] a proven sensitivity and understanding of religious issues’ (p.876).  The Lord Justice himself  could certainly not be accused of undue sensitivity to traditional Christianity, despite sitting on the editorial board of the Ecclesiastical Law Journal

Like the court in Johns, Laws LJ made only the briefest reference to ecclesiastical law, when he observed that ‘the liturgy and practice of the established Church are to some extent prescribed by law’ (p.877).  So they are, but he failed to mention that the law prescribes the Church’s doctrine as well.

Laws LJ held that the state cannot ascertain religious truth.  This may be true, but the state can receive and accept religious truth.  Ecclesiastical law is the constitutional means by which the state continues to receive this truth, even into the 21st century.  

Despite its inability to ascertain truth, Laws LJ stressed the importance of the (secular) state ‘thinking for itself’ and being ‘reasonable’ and ‘objective’  (presumably in contrast to religious belief, which is irrational and subjective), but this rather begs the question, what is objective reason?  By what values and methods is it to be discerned, if religious values are to be disregarded?

The policy of religious ‘neutrality’ assumes that only an irreligious state is capable of not discriminating against religious minorities.  Yet it is questionable whether the state can ever be truly neutral in matters of religion.  If the state affects a religious neutrality, it merely constructs a religion-substitute or ideology of its own, which takes the place of traditional religion, and which may be far from tolerant of religions which contradict it.

The ‘equality’ laws, and their interpretation by the courts, demonstrate this process with painful clarity.  But the equality laws have not, as yet, succeeded in doing away with ecclesiastical law!