The Church of Utrecht

In the seventeenth and eighteenth centuries, a certain alienation developed between two groups of Catholics in the Dutch Republic. Various factors played a role in this.Footnote ³ From the point of view of canon law, the most important was the dispute over whether the pre-Reformation Catholic Church and its institutions still existed or whether the Church had perished, so that the Dutch Republic had become a mission territory. There was good reason to believe that the Church still existed, even though the Protestants had deprived the Catholics of their Churches and monasteries, the public practice of Catholic worship was forbidden, and the Catholics were reduced to second-class citizens. On the other hand, the chapters of Haarlem and Utrecht still existed,Footnote ⁴ the parishes had found new places of worship in hidden Churches, and a Vicar Apostolic had taken over much of the role of the diocesan bishops. In 1704, Vicar Apostolic Petrus Codde (1648–1710) was deposed by the Pope after being accused of Jansenism. From then on, the Catholic Church in the Republic was without a bishop to perform ordinations, consecrate the chrism or administer confirmation. In 1723 the Chapter of Utrecht decided to put an end to this undesirable situation by electing a bishop and having him consecrated. The Pope refused to confirm the election and broke off communion with this bishop and all the clergy who recognised him as their diocesan bishop. However, the actions of the Chapter in this situation were fully justified by eminent theologians and canonists on the basis of the sources of law in force at the time.Footnote ⁵ The emergence of the Old Catholic Church of the Netherlands, as it came to be called, is therefore closely linked to the defence of the local Church’s own competences and responsibilities. The Church of Utrecht continued to adhere to the canon law as in force, i.e. that of the Corpus iuris canonici, although in practice the standard work of the Louvain canonist Zeger-Bernard van Espen (1646–1728), the Ius Ecclesiasticum Universum (1700), was usually consulted.Footnote ⁶ It was not until the twentieth century that a new, partial codification of canon law, was promulgated.

Old Catholic Churches in the German-speaking countries

As in the Netherlands, the emergence of Old Catholic Churches in German-speaking countries had to do with the assertion of the position of the local Church. However, the circumstances were quite different from those in the Dutch Republic in the eighteenth century. Rome did not break communion with a Church Province, but with a movement of Catholic theologians and other believers, especially lay people, who opposed the new dogmas of the First Vatican Council (1869–1870). The protest was not against the infringement of the rights of a particular local Church,Footnote ⁷ but against the elevation of the universal jurisdiction and the infallibility of the Pope to a dogma that left little room for the local Church’s own responsibility. The attitude to canon law was therefore different from that in the Dutch Republic. The Dutch invoked canon law to defend the position of the local Church. The Germans did not invoke the law, but protested against the implications the dogmas would have for canon law as it was eventually codified in the Codex iuris canonici of 1917.Footnote ⁸ The attitude to the Primitive Church was also different. For the Dutch it was a framework or a basis for interpreting existing canon law, for the Germans it seemed to be a guide for developing new structures. Another difference was the German susceptibility to new social achievements and the secular principles of the rule of law.

As the Old Catholic movement in Germany moved towards the establishment of a Church,Footnote ⁹ it soon developed a constitution and introduced in 1874 an innovative administrative structure in which, alongside the diocesan bishop, there was a synod, composed of representatives of the clergy and laity, with considerable powers. The main author behind this innovative structure was the Bonn professor Johann Friedrich von Schulte (1827–1914). The justification was amongst other things sought in the Council of Jerusalem, described in the book of Acts of the Apostles, where all those present participated in the decision-making process,Footnote ¹⁰ and in the conviction that the Holy Spirit is given to all. The synod is the mouth of the Church through which the Spirit of God speaks.Footnote ¹¹

Polish Old Catholic Churches

After the formation of the Union of the Old Catholic Churches in 1889, a number of other Churches joined them. These were not so much born out of a defence of the local Church, but rather out of an attempt to preserve a cultural and ethnic identity. The American Polish National Catholic Church (PNCC) was a member of the Utrecht Union from 1907 to 2006. This Church grew out of three groups of Polish parishes that had lost communion with Rome. The Church was founded in 1904 when the first synod was held.Footnote ¹² The Old Catholic Church of the Mariavites in Poland emerged from a reform movement within the Roman Catholic Church. It belonged to the Union of Utrecht from 1909 to 1924.Footnote ¹³ A missionary diocese was established also in Poland by the American PNCC. It adopted the synodal structure of its mother Church and became independent in 1951. This Polish Catholic Church is still a member of the Union of Utrecht.Footnote ¹⁴

Ecclesiological principles in the Declaration of Utrecht (1889)

Thus a common premise of canon law was found in the orientation to the Early Church, although for the Dutch this had been a tool for interpreting the provisions of canon law in force, whereas for the German and Swiss Old Catholics it was to become a guideline for developing innovative administrative structures. The Early Church became a common basis in the Declaration of the Old Catholic Bishops of 1889, drafted by the Bonn professor Franz Heinrich Reusch (1825–1900), who belonged to the tradition of the Tübingen School.Footnote ¹⁶ The Declaration stated that the dogmas of the First Vatican Council, which destroy (zerstören) the constitution (Verfassung) of the Early Church, were to be rejected. Obviously the constitution of the Early Church was adopted as normative. What this constitution exactly is, was not made clear in the Declaration. From other sources we can form an idea of what the bishops and theologians had in mind, namely some elements of canon law that we can still discern today: the local Church not being unconditionally subordinate to a universal administrative centre, the diocese as a central entity, the bishop and clergy forming a college, the faithful gathered together in congregations, and so on.

Reception of the German synodal structure

Apart from the common premiss just described, the Old Catholic Churches, united since 1889 by their bishops in the Utrecht Union, also had in common that they introduced synods as administrative bodies, observed certain practices such as the restraint in controlling ecclesiastical life by rules of law and developed a distinctive ecclesiology of the local Church. Characteristic of the Churches today is the so-called episcopal-synodal structure: in addition to the bishop (or bishops) there is a synod, composed of representatives of the clergy and the laity (parishes) as a second administrative body. In most Churches this synod also has a kind of executive committee as a permanent representation of the synod. The episcopal-synodal structure was first introduced in the German Church in 1874, in the Church of Switzerland a year later, and in the Church of Austria in 1879. The Polish National Catholic Church in the United States established a synod in 1904, before joining the Union of Utrecht. When the Czech Church became independent in 1918, it retained the Austrian institutions while the Austrian Church re-established itself. In the Netherlands a synod for the Church province was not introduced until 1919. The Polish Catholic Church, initially a missionary diocese of the PNCC, had a synod from 1928. It retained its administrative institutions when it became an established Church in 1951.Footnote ¹⁷

Attitude to law in the Church as a phenomenon

In various Churches there was a critical attitude towards the idea of law in the Church. The Dutch Old Catholics had in the past invoked canon law to defend the existence of the local Church, but they had resisted a juridification of Church life, especially the Jesuit idea of moral theology as a kind of legal order. In Germany, the extensive body of Roman Catholic canonical rules was increasingly seen as a means of extending and confirming a centralised Church structure. In Germany, and later in the Netherlands as well, the idea put forward by the Leipzig professor Rudolph Sohm (1841–1917) that something like law simply did not belong in the Church may also have played a role.Footnote ¹⁸

In the course of the twentieth century, this scepticism was largely overcome. The prominent Old Catholic theologian Kurt Stalder (1912–1996) published an article in 1982 in which he argued that there was no antithesis between Church and law. He defended a full place for canon law, but not a canon law that oppresses or punishes, but a canon law that enables us to give account of the responsibilities entrusted to us within the Church.Footnote ¹⁹

All the Old Catholic Churches now have a partial codification which mainly sets out the administrative structure of the Church. In most cases there is also a brief regulation of the disciplinary law for clerics, including rules of procedure. What is lacking are detailed rules for the administration of the sacraments. Despite the risk of inequality, it has been preferred to solve pastoral problems in a pastoral rather than a legal way. Nevertheless, there is still some law in this area, rooted in tradition, which continues as custom. From time to time it has been necessary to promulgate directives to supplement or adapt existing practice. Thus we find today, for example, liturgical law in the rubrics of the official liturgical books and matrimonial law in bylaws and pastoral letters.

Reception of the ecclesiology of the local Church

Another common basis of canon law within the Utrecht Union is the ecclesiology of the local Church, or rather the Old Catholic version of such an ecclesiology. It was primarily Swiss theologians, such as the aforementioned Kurt Stalder, followed by Herwig Aldenhoven (1933–2002) and Urs von Arx (1943), who developed this theology.Footnote ²⁰ Over time it became the dominant ecclesiology within Old Catholic theological thought. In short, it holds that when salvation in Christ becomes a reality for a local community, that community is fully Church. Thus the Church is the local community that celebrates the Eucharist with its bishop and is linked through its bishop to other local Churches. The materials of this ecclesiology, Scripture and Creed, Eucharist and Bishop, are rooted in the early Church.Footnote ²¹

Sources of law

As their main source of law, all the Old Catholic Churches united in the Union of Utrecht have a partial codification of canon law in a brief or less brief basic document called a constitution, statute or regulation.Footnote ²² These main documents concern the administrative structures of the Church, its officers, bodies and their responsibilities and powers. In most cases they include disciplinary rules and a concise code of procedure, but, as stated above, no or very few specific provisions on the administration of the sacraments. The basic documents are commonly supplemented by some additional directives and regulations.

Administrative structures

Most Churches have introduced a synod, following the example of the German Church. This explains why we find similar institutions and organs, but with all kinds of differences. At the highest level there are usually three organs: the bishop, the synod and a committee of synod representatives. However, the division of responsibilities between these bodies varies from Church to Church. In many Churches, the synod has the final say on matters of administration and finance, while the bishop has the final say on matters of doctrine and discipline. Only in Switzerland does the synod have the final say on matters of faith, although a special procedure must be followed. In most cases the bishop is elected by the synod and can be deposed by the synod after a special procedure with strict requirements. The Dutch synod differs in many ways from that of other Churches. It is mainly advisory, the bishops do not have a seat in the synod, and the synod does not elect or depose a bishop. In the Netherlands elections are made by the diocesan chapter or by the clergy.

Matrimonial law

With regard to matrimonial law, the Dutch Church does not consider marriage to be a sacrament, but rather the ecclesiastical blessing of a marriage previously contracted before the secular authorities. Consequently, there is no need to annul marriages, as is the case in the Roman Catholic Church. The civil authorities are responsible for solemnising and dissolving marriages. However, Christian spouses are not allowed to divorce, which means that it is impossible to give the blessing of marriage for a second time in case of divorce. Only since 1992 has the parish priest been able to apply to the bishop for a dispensation, which is granted only under certain strict conditions. In Germany, however, secular divorce is recognised by the Church as the end of a marriage. For a new ecclesiastical marriage, the priest must be satisfied that there is no impediment, such as an existing marriage.Footnote ²³

Relationship between Church and State

Since the nineteenth century, the relationship between the Churches and the civil authorities in German-speaking countries has been governed by secular public law. When an Old Catholic Church is recognised by the state, it becomes a body corporate under public law – as do its institutions such as dioceses, deaneries, parishes, schools and foundations. This gives the Church the power to appoint parish priests under public law. The provisions of secular public law which apply to those Churches recognised by the state are called Staatskirchenrecht (state Church law). In Germany, Switzerland, Austria and Poland there are specific secular laws applicable to the Old Catholic Churches. In Germany they vary from Land to Land, in Switzerland from canton to canton.Footnote ²⁴ In the Netherlands there is no specific legislation for separate Churches and only a few legal provisions applicable to religious communities in general. The Dutch Civil Code (Article 2:2 BW) provides that Churches and their independent parts have legal personality without any specific conditions. Moreover, the rules that apply to all social associations apply to Churches. This also means that Churches and religiosity are not excluded from the public domain, as is the case, for example, with French laïcité. This is why we speak of ‘inclusive neutrality’.Footnote ²⁵

International Bishops’ Conference

Within the limits of the particular law of the various national Churches and the limits of secular legislation Old Catholic bishops have various degrees of discretion. At the same time, they have a responsibility to maintain unity within the Union of Utrecht. In the Bishops’ Declaration of 1889, the bishops were united in their rejection of the dogmas of the First Vatican Council. Over the course of more than a century, the Union reached agreement on many theological insights. The Union was more or less forced to do so by ecumenical dialogue, especially with the Orthodox Churches.

The position of the International Bishops’ Conference has always been somewhat problematic.Footnote ²⁶ On the one hand, the idea of a universal centre of power has been rejected; on the other, Catholic Churches are linked across borders. There has been a movement over the last 50 years in the attempts to clarify the position of the International Bishops’ Conference. At times the Conference has sought to maintain unity by giving itself rather strong authority to bind the bishops and their Churches to a common direction or a majority position. The Agreement (Vereinbarung) of 1974 gave the Conference its own jurisdiction. Since then there have been attempts to control episcopal elections or to make them subject to conference approval. This attitude has changed in recent decades. The 2000 Statute of the Conference recognises that bishops are bound by the particular law of their Churches. It also states that the local Church has a special role to play in the preparation of important decisions of the Conference, as well as in the process of receiving and implementing these decisions. In this way it has been made clear that the Conference has no jurisdiction of its own and no binding doctrinal authority, but is a place of fraternal consultation with the intention of acting as harmoniously as possible, and has rather a moral authority.Footnote ²⁷

Revisiting the episcopal-synodal model

The episcopal-synodal model has been adopted by all the Old Catholic Churches, but there is a certain tension between theory and practice. Moreover, its translation into practical provisions of canon law has led to divergent rules. All constitutions distinguish between bishop, synod and synodal representation, but there are many differences in the powers and responsibilities of these bodies and in their interdependence and hierarchy.

For a long time the Dutch Church relied heavily on traditional Catholic canon law, although, as in the Roman Catholic Church, synods were rarely held. One of the few exceptions was the Provincial Council of Utrecht in 1763, where, notably, all the parish priests present had the right to vote. Laymen were not represented, although in the ecclesiological theory of the time they were not completely excluded from the exercise of ecclesiastical jurisdiction.Footnote ²⁸ The second half of the nineteenth century saw a further emancipation of the lower clergy, who now met from time to time in informal gatherings with a consultative function. The laity organised themselves into a fund called OKOF (Old Catholic Relief Fund) with local branches. Their meetings discussed current ecclesiastical issues, especially those relating to the reform of Church life, and their opinions were taken seriously. However, it would be a long time before a synod was established.

In Germany, where the Old Catholic Movement was initially dominated by academics rather than bishops or priests, lay people expressed their desire to have a say in ecclesiastical matters as early as 1869 and 1871, and sought a ‘statutory participation in ecclesiastical affairs’.Footnote ²⁹ The essential contribution of the laity was justified by the Primitive Church, especially the Apostolic Council of Acts, and the idea that the Holy Spirit speaks to all. It was the spirit of the times, however, that left its mark on practical implementation. A wave of democratisation was sweeping across the European continent. The Old Catholic Movement was open to the achievements of the constitutional state, which would soon recognise the right to vote as a fundamental right. Initially, Schulte wanted a synod composed of two houses, one for the clergy and one for the laity. However, there were objections to such a model, and Schulte soon drafted new provisions which provided for a synod consisting of only one house, in which both clergy and laity were represented.Footnote ³⁰ In his memoirs, Schulte acknowledged that he had designed an ecclesiastical administrative model in keeping with the spirit of the times: ‘I may regard my task as fulfilled. Secondly, I have succeeded in drafting for the Church and having adopted a constitution which, as regards the position of priests, bishops and parishes, is as close as possible to that of the first century and corresponds to the present age’.Footnote ³¹

The German model has been adopted by other Churches, albeit, as noted above, with all sorts of alternative implementations. The Swiss constitution was influenced by secular constitutional law and can be considered even more ‘democratic’.Footnote ³² In the Netherlands a synod was not established until 1919. Unlike the other synods, it was and still is mainly consultative. In 1936 a dual system was introduced, which meant that the bishops were no longer members of the synod. The differences between the synods may be therefore considerable. The competence of synods can vary from advisory in all matters to decisive even in theological matters. The position of the diocesan bishop can also vary, from being the first responsible person in the diocese to being in many fields subject to the control of the synod.

Since the founding of the synods, many things have changed. There has been a growing awareness of the possible friction between the two starting points, namely the constitution of the primitive Church on the one hand and the principles of the modern constitutional state on the other, an awareness that the specific nature of canon law does not always allow for an unimpaired transplant of structures of secular law, and that the episcopal-synodal model, as it is implemented in practice, also has certain imperfections. Looking back on the origins and development of the Swiss Church, Bishop Urs Küry (1901–1976) stated in 1972:

Finally, there is the above-mentioned Old Catholic ecclesiology of the local Church, which became the generally accepted legacy of Old Catholic theologians. Its traces can be found in various preambles of contemporary documents of canon law,Footnote ³⁴ but it has not yet managed to change or adapt the synodal systems.

We should recognise that a common ecclesiology cannot in a logically compelling way lead to specific rules of canon law, nor will a rethinking of the episcopal-synodal model lead to identical renewed synodal systems. Nevertheless, it can be of great importance to reflect on the existing synodal systems from the perspective of Scripture, Primitive Church, the common law of Western Catholicism, and shared ecclesiological insights, that do point to certain pre-requisites. This is all the more recommendable, as all Churches with an episcopal-synodal structure struggle with similar issues, such as finding a legitimate balance between the responsibilities and competences of the bishop on the one hand and those of a synod on the other, and finding workable procedures for a way out in the unhoped case of an irreconcilable and fundamental disagreement between bishop and synod.

Parallel jurisdictions

The other challenge has to do with the external relations of the Utrecht Union, and cannot be addressed without support of the Anglican Communion, namely what to do about the existence of parallel jurisdictions.Footnote ³⁵ At the time the Bonn Agreement (1931) came into being, the Anglican chaplaincies in north-west Europe were under the jurisdiction of the Bishop of London, from 1926 organised as the ‘Jurisdiction of North and Central Europe’. In the Bonn Agreement of 1931, each community accepted the other as an independent jurisdiction with its own doctrinal views. Nevertheless, there have been occasions when Old Catholics have felt that full communion between the two communities might well lead to some form of cooperation at the local level, for example in the training of clergy or in the pastoral care of parishes and chaplaincies. It was even suggested that Anglican chaplaincies and Old Catholic parishes could be brought together under the same jurisdiction. In October 1947 a delegation from the Church of England’s Council for Foreign Relations met with the Dutch Episcopal Commission for Canon Law to discuss such matters.Footnote ³⁶ Canon George W O Addleshaw (1906–1982) had prepared a memorandum for this meeting. The delegations discussed the possibility of Anglican chaplaincies coming within Old Catholic jurisdiction and dual membership, but did not come to an agreement on these matters. They recognised the right of both communities to establish churches in each other’s jurisdictions, but recommended that mutual links be strengthened and that parallel jurisdiction be exercised in consultation with the other diocesan bishop. Congregations in the same locality should work together while retaining their own ecclesiastical life, clergy and liturgy. It was also recommended that the Bishop of London should discourage proselytism.Footnote ³⁷

In 1980 the ‘Jurisdiction of North and Central Europe’ was merged with the Anglican Diocese of Gibraltar in Europe, from then on commonly referred to as the Diocese in Europe, which formally is a diocese of chaplaincy-communities and part of the Church Province of Canterbury, but factually a territorial diocese on the continent. As a result, there is now an Anglican diocese in the geographical areas of Old Catholic dioceses.Footnote ³⁸

Over time, the Bonn Agreement came to be seen as a guide for the future. The need for further co-operation was felt for a number of reasons. The world was getting smaller, the Church of England was looking more to Europe than in the past, and chaplaincies were becoming more deeply rooted in the continent.Footnote ³⁹ Already at the Lambeth Conference in 1958, further cooperation between Anglicans and Old Catholics in the Netherlands was encouraged.Footnote ⁴⁰ The 1998 Lambeth Conference, noting the progress made in Europe in cooperation between Churches with parallel jurisdictions, encouraged the exploration of ‘appropriate provincial structures for Anglican continental Europe in partnership with other Churches in the service of the common mission of the Church’.Footnote ⁴¹ Later that year, the first meeting of the Anglican-Old Catholic International Co-ordinating Council (AOCICC) was held, which was aimed at exploring areas where further co-operation was possible and desirable.

Anglican-Old Catholic Theological Conferences have taken place since 1957. The 2005 conference, held in Leeds from 29 August to 2 September, affirmed that the local Church, i.e. the diocese, is the basic ecclesiological entity. The question was raised as to how this common understanding should relate to situations of parallel jurisdictions. The existence of parallel jurisdictions does not fit well with the ecclesiological conviction that the Church is the local community celebrating the Eucharist with its bishop. From that perspective, having two bishops in the same place looks like an anomaly.Footnote ⁴² The International Old Catholic Congress, held a year later in Freiburg im Breisgau, commemorated the 75th anniversary of the Bonn Agreement. The Archbishop of Canterbury, Rowan Williams, gave a speech entitled ‘One hope, one Church’. Although he did not set out specific guidelines for the future, he emphasised what unites and should unite the two Communions. The conference issued a statement calling for further cooperation and the development of common structures.Footnote ⁴³

Since 2000, both Anglican and Old Catholic bishops have developed various theoretical models for ending the parallel jurisdictions as far as possible, but none of these ideas has been further developed or made concrete. In 2007, the bishops of the Anglican-Old Catholic International Co-ordinating Council, meeting in Madrid from 5 to 9 March, discussed a possible concrete step towards to a further formal joint structure, namely to have the vacant see of Deventer in the Netherlands occupied by a suffragan (in the Anglican sense) of the Bishop of Europe, who would then look after the chaplaincies in the country. I was one of the four canonists who met in Amsterdam on 10 December 2007 to discuss this matter.Footnote ⁴⁴ The idea proposed by the bishops raised many questions of canon law, both theoretical and practical, but no substantive discussion took place. It appeared that one or more of the bishops involved saw the rather liberal pastoral approach of the Old Catholics on issues such as divorce and homosexuality as a fundamental obstacle to further cooperation.Footnote ⁴⁵

This is where the story ends, at least as far as the canonical approach to the subject is concerned. The report of this 2007 meeting brought the discussion to a temporary end. However, the desire to find appropriate provincial structures for the Anglican and Old Catholic communities in continental Europe remains. It is hoped therefore that this article will help to put the issue back on the ecclesiastical and academic agenda.