| THE THIRTEEN Lambeth Conferences from 1867 to 1998 have never fully addressed the place of law in the life of the Church.
No bad thing, we think. The Conference does not make laws: it has no competence to do so. Laws are the domestic business of the Churches of the Communion in the exercise of their provincial autonomy; and, anyway, law is for lawyers. The Conference is for bishops, their spiritual reflection and mutual counsel, through the sharing of experiences.
And so, historically, the focus (and achievement) of Lambeth Conferences has been to unify the global Anglican family of Churches, to develop a consensus in matters of faith and order, to promote ecumenical dialogue, and to stimulate action in the world on moral and political issues: international conflict (1930), racial discrimination (1948), capital punishment (1978), human rights, poverty, debt (1988), HIV/AIDS, the environment, and human sexuality (1998).
Yet, issues with a legal dimension have never been very far below the surface: disciplining bishops (1867); missionary jurisdictions (1878); doctrinal dispute (1867-97)); liturgical reform (1908, 1948); marriage and divorce (1958); female ordination (1948-88); provincial autonomy and Communion structures (1948-78); and ordination and homosexuality (1998).
AT LAMBETH 2008, however, church law will break through the surface. Of course, the bishops will also be discussing biblical interpretation, ecumenism, other faiths, HIV/
AIDS, and evangelism. But, arguably for the first time, the focus will be on law around the topics of Anglican identity and issues of covenant.
The background is well known, and is related to threats to Anglican unity following discord about human sexuality at Lambeth 1998. It is related to two developments: the canon-law-principles project and the covenant project.
The first of these has its origins in 2001, when, under the presidency of Archbishop Carey, the Primates’ Meeting discussed (for the first time) the contribution (or not) made by the laws of the Churches to global communion in Anglicanism.
At the request of the Primates, an Anglican Communion legal advisers’ consultation met for the first time at Canterbury in 2002, and proposed that there are principles of canon law common to the Churches of the Communion.
The Primates in 2002 recognised that “the unwritten law common to the Churches of the Communion and expressed as shared principles of canon law may be understood to constitute a fifth ‘instrument of unity’” (alongside the Archbishop of Canterbury, Lambeth Conference, Anglican Consultative Council (ACC), and Primates’ Meeting).
The ACC at Hong Kong then established a network of legal advisers to produce a statement of the principles. In 2003, the Primates urged completion of the work, as did the Lambeth Commission in its Windsor report (2004). The network is to present its statement of the principles at the Lambeth Conference this summer.
THE covenant project has its roots in the Lambeth Commission process on the legal and theological implications of the decision of the Episcopal Church in the United States to select a priest in a committed same-sex relationship as one of its bishops, and the decision by the diocese of New Westminster, in Canada, to authorise services for use in connection with same-sex unions.
In the Windsor report, a key recommendation to maintain the highest degree of communion was the adoption by the Churches of the Communion of a common Anglican Covenant. The Commission offered a preliminary draft covenant, and proposed that each Church enacts its own brief “communion law” authorising that Church to enter the covenant.
Since Windsor, the St Andrew’s draft covenant (2008), developing the Nassau draft (2007), raises a host of both theological and legal questions: ranging from the theological nature of communion, through the legal character of provincial autonomy, to the theological and legal implications of covenanting.
These matters, too, are to be discussed at Lambeth 2008, particularly at the self-selecting sessions. These two developments, in canon law and covenant, represent the stimulus for the appearance of church law on the agenda of Lambeth 2008.
DESPITE the topicality of these two developments, the words “canon law” are likely to fill many with dread.
The place of law in the Church is often contested. Law is seen as oppressive. Law is, however, at the core of many of the topics the bishops will discuss in Canterbury, and their theological reflections will be informed by their experiences of canon law in their own Churches.
In recent years, lawyers have gone some way to dispel dismal images of canon law. Law is the servant of the Church. It is not an end in itself, but exists to serve the mission of the Church. Yes, of course, laws have their limits: they cannot effect salvation or prescribe the fullness of grace, ministry, and mission. In spite of these obvious limitations, however, five essential facts about church law illustrate that law is fundamental to the constitution of ecclesial life.
1. The law-book is a central text in the life of a Church. In the same way as there are scriptural and liturgical texts, so there are also the law texts. Scripture, liturgy, and law, the key texts of a Church — for evangelism, worship, and governance: each is fundamental to ecclesial life.
While there is no global canon law applicable to the Churches of the Communion (and no instrument of communion currently has the competence to create one), each autonomous Church has its own legal system. This is found in one or more legal texts: a constitution, canons, and other regulatory instruments.
Legal texts shape the public and institutional life of the visible ecclesial community. Even the Bible is a law book as well as a history book and a book of poetry. Equally, worship is shaped by normative liturgical texts that provide conditions in which the presence of God is experienced.
Like scripture and liturgy, so the lifeless words on the pages of legal texts are animated by the Spirit and by action. Indeed, reflection on a legal text may itself be a spiritual experience: the wisdom of the ecclesial body politic speaks to us through the text. And the text
brings stability, coherence, and certainty to decision-making in the Church.
Anglicans are not alone in this juridical text experience: the Latin and Eastern Catholic Churches have their codes, the Orthodox its canonical tradition and charters, and Lutheran and Reformed Churches have their constitutions and byelaws.
2. Needless to say, legal texts are not conjured out of thin air, the whim of the legislator. As the law-books have their forms, so also they have their material sources. Chief among these is theology, especially ecclesiology — so much so that today it is commonplace for Anglican lawyers to see church law as applied ecclesiology. Theology concerns judgement based on knowledge acquired through reflection upon revelation, and canon law implements theological ideas in the form of norms.
The classical Anglican trilogy of scripture, reason, and tradition — and their practical ramifications — may also all be deployed by law-makers in the Churches. Indeed, when theology becomes doctrine (church teaching), the law has a delicate function. In most Anglican Churches law seeks to ensure the public presentation of the faith; locate and protect the faith; empower the Church to develop and reformulate the faith; and enable a degree of doctrinal discipline.
Many of the principles of canon law to be offered at Lambeth 2008 also have a high theological content (as has the proposed Covenant).
In all this, Anglicans share much with ecumenical partners: in the Lutheran and Reformed traditions, for example (as said at the Barmen Synod 1934), “the external juridical order of the Church should be at the service of the proclamation of the word.” An ecclesial community is less of a Church when its law does not implement theology, and theology is more abstraction when not acted on in the juridical order of the Church.
3. Law is about action in the Church in its mission to the world. Churches are a different sort of community from secular society; but they also have a human and institutional character. As such, like any community, they need their house rules — norms of conduct.
This has always been so. In the New Testament, sacramental life is delineated; in the post-apostolic Church, the Greek word kanon (reed, rod, or ruler) signified a standard of conduct; and from the medieval Church (East and West) canon law came to denote the whole system of church law.
The modern laws of Anglican Churches are in historical continuity with this canonical tradition as preserved at the Reformation and exported, adapted, and modernised in Anglicanism through the mix of mission and colonialism.
Today, the pervasiveness of law in Churches is striking. It deals with ecclesiastical government (the powers of and limits on institutions), ministry (the functions and discipline of laity, clergy, and bishops), doctrine, worship, and ritual (baptism, holy communion, and marriage), property (its acquisition, maintenance, and disposal), and, increasingly, ecumenism (to implement ecumenical agreements).
In all these areas of public church life (it does not generally intervene in private lives of the faithful), the law permits, commands, and prohibits. However, whatever the motives for complying with law — acceptance of its value, threats of sanction, or inertia — law-compliant acts are not fully Christian unless performed with a proper inner disposition (the pneumatology of canon law).
It might be said, then, that a Church without law is a Church without action, and so laws often become a habitus mentis.
Lambeth 2008 could be informed by these ideas and experiences: law is a pervasive, natural, and flexible instrument for action in the mission of the Church.
4. Laws facilitate and order communion and mission. Each Anglican Church is itself a communion of its faithful (in parish, diocese, and province). While life is sustained by the Spirit, law provides the facilities and minimal conditions under which this personal communion is worked out.
This points perhaps to the sacramental quality of law. In turn, facility and order are key concepts used by synods to shape law, in the form of rights and duties, principles and rules. Law provides facilities for the mutual relations of the faithful to serve God and the world; it gives meaning to these facilities by (for example) assigning tasks, conferring jurisdiction, and defining relationships — what we owe each other. It enables us to practise communion. As it is binding upon us through commitments, so it binds us together in our common Christian calling.
At the same time, law is also an instrument of ecclesial order, organisation, and discipline: it exists to serve the integrity of the faith, sacraments and mission, to promote Christian values (including the dignity of persons), and to prevent and resolve conflict.
In these senses the law has an educative, pastoral, and protective function, but it does not replace faith, grace, and charity. It is no accident that some describe church polity as covenantal — as a consensual compact.
A Church without law (and the will and means to enforce it) is a Church without order; and denying a Church its authority is tantamount to repudiation of the rule of law.
Doubtless Lambeth 2008 will bring these ideas to its own discussions of canon law and covenant: the global Anglican Communion is, after all, something of a macrocosm of the local church. The canon-law principles and the proposed Covenant merely seek similar facilities and order at the global level of the Communion.
Likewise, the instruments of other global ecclesial communities, such as the constitutions of the Lutheran World Federation and World Alliance of Reformed Churches, seek unity, honour autonomy, and enable common action in their respective fellowships.
5. Laws sharpen an understanding of Anglican identity, and thus assist ecumenical dialogue. On the one hand, law is essential for the self-understanding of a Church (its ecclesiality). The law actually spells out the character of a Church — its view of its institutional organisation, ministry, ritual, and so on.
Indeed, it could be said that it is to the law-book of a Church that we must turn for an understanding of its sociality, apostolicity, and catholicity. The law defines all these.
The bishops at Lambeth 2008 might approach the canon-law principles and Covenant similarly — they also aim to spell out Anglicanism at its global level. Consequently, both the canonical principles and proposed covenant would provide an aid for ecumenical partners seeking a global understanding of Anglicanism beyond doctrine or belief and into the realm of action.
Consulting the texts reveals a host of insights into Anglicanism. Who knows? The principles project might even offer a model for the wider ecumenical enterprise. Comparing laws ecumenically would reveal many shared experiences and values, and thus, despite differences in doctrine, reveal practical avenues for greater visible unity.
AT LAMBETH 2008, then, the bishops will reflect theologically — in the light of scripture, tradition, and reason — on the statement of principles of canon law common to the Churches of the Anglican Communion and the proposed Anglican Covenant.
The canon-law principles and the draft Covenant are similar to provincial laws in nature (consensual), form (now textual), basis (theology), subject-matter (ministry, doctrine, liturgy, and governance), and pur-pose (communion and mission).
The difference is that only provincial laws are currently enforceable juridically.
Lambeth 2008 is an opportunity to look internationally at the canonical principles and the Covenant in the light of the five key marks of the local law in each Church listed above: the law-book is a central text in the life the Church; church law implements theology; law is about action; law seeks to facilitate and order communion and mission; and law articulates identity and, as such, assists mutual understanding for ecumenical advancement.
Above all, law is the servant of the Church. But without it, provinces would be less than Churches.
Norman Doe is Professor of Law and Director of the Centre for Law and Religion, the Law School, Cardiff University, directs its LLM in Canon Law, and is an associate professor at the University of Paris. His books include Canon Law in the Anglican Communion (Oxford University Press, 1998) and An Anglican Covenant (Canterbury Press, 2008). He acts as consultant to the Anglican Communion Legal Advisers Network.
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