Anglican Communion Office publication of 2008
This publication would be more accurately entitled ‘Principles of Governance Common to the Churches etc’. It is confusing to describe the constitutions and rules of Anglican Churches as ‘canon law’. Such a description conflicts with the received understanding of canon law as the law of the Catholic Church, which never formed part of English law.
No doubt there are rules and principles in the constitutions of all modern Churches (and in most modern systems of governance) that are derived from mediaeval canon law, but that does not make them canon law per se. The description also ignores the fact that, with the exception of the Church of England, the ‘laws’ of Anglican Churches are mostly voluntary rules made by the Church members, not the law of the land.
The principles described are drawn from characteristics shared by the constitutions of some or all Anglican Churches.These common characteristics have been identified by the researches of Professor Norman Doe and other members of the Anglican Communion Legal Advisers’ Network (ACLAN). Exactly 100 principles are identified, and arranged into eight sections which tend to follow the structure of Doe’s own books on the Church of England and the Anglican Communion.
The principles include unobjectionable assertions that Church authorities should act lawfully and constitutionally (cf 6(1) and 17). Principle 5 makes the sound points that a Church rule or ‘law’ binds all Church members, laypeople as well as clergy, and that a profession of faith or declaration of submission to ecclesiastical authority binds the person who makes it.
This rightly disposes of the anachronistic concern about whether English ecclesiastical law binds the laity. When the Convocations were composed only of clergy, it is easy to see why the courts ruled that their legislation should bind only the clergy. Today, however, ecclesiastical rules are made by assemblies that include lay representatives as well as clergy, so there is no reason of constitutional principle why lay people should not be bound by such rules.
Principle 81 does not escape the confusion first sown by Chancellor Newsom in the case of St. John’s Chelsea (1962) 2 All England Reports 850, concerning the consecration of land. It correctly states that ‘Places of public worship and for Christian burial may be set aside for the purposes of God by consecration’. However, it goes on to assert that ‘consecrated … Church property may not be used for purposes inconsistent with the uses of God for which it is set aside’.
The word ‘property’ is ambiguous in this context. It may mean only that consecrated churches and burial grounds may not be used for secular purposes. It may, however, mean that no consecrated land may be used for secular purposes, even if that land is not a church or a burial ground.
Principle 7(6) suggests that constitutional rules may be dispensed with in cases of ‘legitimate necessity’, but only if the constitution itself gives authority to dispense. Any dispensation should, of course, have proper authority, but it is not clear what is meant by ‘necessity’. The well-known maxim holds that ‘against necessity there is no law’, so presumably no dispensation from law is required. Necessity is a defence to a complaint of illegality, rather than a ground of dispensation. Perhaps Principle 7(6) means that any exception to a general rule requires proper justification.
The Preface warns that the principles identified do not necessarily apply to all the Anglican Churches. Certainly they have little to say about the ‘establishment’ of the Church of England. There is no principle addressing the right of the secular authority to approve ecclesiastical legislation and appoint bishops, or the Head of State’s claim to be ex officio also the Head of the local Church.
The 39 Articles are still an authoritative statement of doctrine in English ecclesiastical law, but the principles say only that Anglican Churches ‘uphold and propagate the historic faith and order as typified in the Book of Common Prayer 1662 and its derivatives’ (10(2)). The 1662 Book is ‘the normative standard for liturgy’ (55(1)). Neither principle refers to the Articles. They suggest that faith and order are defined only by the liturgies (including ordination rites) of each Church. It is for each particular Church to judge whether its liturgy follows the ‘type’ or ‘norm’ of the 1662 Book.
There is one rather mysterious reference to the 39 Articles and the other ‘historic formularies’ of the Church of England in Principle 49, which provides that they ‘represent the historic sources of lawful doctrine for a Church’ (.5). This presumably means that a Church may receive the doctrine taught by the Articles, but need not do so. There is also a paraphrase of canon A5 (.4).
As always in Anglican commentaries, the greatest difficulty and confusion concerns the nature of the episcopate and of the Anglican Communion itself. Principle 15 asserts that episcopal leadership and episcopal ‘collegiality’ are both ‘fundamental to ecclesiastical polity’. However, the principles also accept that episcopal ministry is subject to the law (9(3) and 18(6)). Yet if episcopal leadership and collegiality are ‘fundamental’ this rather implies that the law should be subject to them, rather than vice versa.
The Anglican Churches are ‘characterised by their historic relationship of communion with the See of Canterbury’ (10(1)), but that phrase contains another confusion. There is undoubtedly a historical relationship between the modern Anglican Churches, but communion is a theological relationship. It is never made clear by what alchemy the historical relationship is transformed into a theological relationship.
Inter se the Churches are ‘governed morally by the conventions of the Anglican Communion’, but these alleged conventions are not identified, nor is the concept of ‘moral governance’ explained.