It is more or less self-evident that ecumenical progress has an impact in terms of church polity. This is particularly true when ecumenical conversations between churches make it possible to re-arrange mutual relationships, or even lead to full organic union of the churches involved, as has happened in dozens of cases.Footnote 1 For instance, in 1986 three churches in the Netherlands – two of them with a Calvinist background and one in the Lutheran tradition – produced a Declaration of Consensus with regard to formerly divisive ecclesiological issues, which enabled them to agree to unification. However, the process took more than a decade and a half, first for them to agree on the methodology of unification in terms of church polity and second to draft and implement a new church order.Footnote 2 Nevertheless, ecumenical progress fostered practical steps, including new ecclesiastical legal regulations.
The leading question in this article starts from the opposite position: does it make sense to speak of an ecumenical potential of church polity? The term ‘church polity’ is used here primarily to denote a theological discipline: that is, following a previously published definition
the systematic analysis, evaluation and development of the sum total of established rules as a legal system that governs structures and legal relations within churches, as well as their mutual relations and their relations to the respective states, from the perspective of ecclesiology.Footnote 3
Apart from that, the term can also refer to a system or a pattern of governance that ‘determines how rules and procedures are developed, sustained and sanctioned’,Footnote 4 which includes not only positive ecclesiastical law as such but also less tangible issues such as ‘insight about how a group's ecclesial machinery works and into the many subtle factors that give a unique “feel” or “flavour” to its ethos’.Footnote 5
Does the theological discipline of church polity as such have an ecumenical potential? Would it help the ecumenical movement to make progress if theologians and lawyers from different Christian denominations who were involved in church polity on an academic level could co-operate more intensely on issues that divide those denominations and the theological and doctrinal traditions that have shaped them? Is there an unused surplus in church polity? It is this challenging question that Norman Doe brings up in his book Christian Law and he clearly suggests a positive answer to it. He does so on the very first page of his book: ‘whilst doctrines divide, laws link Christians in common action’,Footnote 6 and he repeats it in his concluding statement: ‘Whilst the doctrinal postures of churches are often divisive, appreciation of the juridical dimension of ecumenism is of enormous assistance to translate the ecumenical commitment into one which focuses on what Christians share in terms of action based on their common norms of conduct.’Footnote 7
In the Introduction to his book, Doe refers to the discussion in the Faith and Order Commission of the World Council of Churches on this subject, in its meeting in Accra in 1974.Footnote 8 A report on ‘The ecumenical movement and church law’Footnote 9 recommended ‘a serious study of the legal aspects of inter-church cooperation and eventual church union’:Footnote 10
A comparative study, or typology, of existing and emerging forms of the Church in legal perspective would help. The relation of such structures to theological self-understanding, their practical strengths and weaknesses, their kinds of responsiveness to ecumenical responsibility, could all be considered.Footnote 11
About two decades later, the former Faith and Order director Günther Gassmann, in his Documentary History of Faith and Order 1963–1993, explained how this report was a follow-up to a 1971 discussion in Louvain on institutionalism, which was the result of initiatives taken as early as 1952.Footnote 12
Doe rightly concludes that no such study has yet taken place. Gassmann says the same, and comments:
Limited financial and personnel resources and, consequently, the need to concentrate on a few major studies have prevented Faith and Order from implementing these initiatives in the area of institution, church law, and church and state. But questions and conflicts in these areas have accompanied the ecumenical movement ever since, which confirms the foresight of those earlier initiatives and the need to take them up once again.Footnote 13
That said, most of the ‘major studies’ that Faith and Order initiated after 1974 had a certain link with and relevance for this subject.Footnote 14 This particularly goes for the ecclesiological studies that followed the Baptism, Eucharist and Ministry (BEM) reports of 1982.Footnote 15 There was the study process on Ecclesiology and Ethics, resulting in three subsequent conferences and publications in the 1990s.Footnote 16 Most importantly, there is the recent report The Church: towards a common vision (henceforth Common Vision),Footnote 17 again the fruit of twenty years of study and consultation.Footnote 18
Although quite implicitly, Common Vision raises issues of institutionality and church polity:
While it is a common affirmation that the Church is a meeting place between the divine and the human, churches nonetheless have different sensitivities or even contrasting convictions concerning the way in which the Holy Spirit's activity in the Church is related to institutional structures or ministerial order. Some see certain essential aspects of the Church's order as willed and instituted by Christ himself for all time; therefore, in faithfulness to the Gospel, Christians would have no authority fundamentally to alter this divinely instituted structure. Some affirm that the ordering of the Church according to God's calling can take more than one form while others affirm that no single institutional order can be attributed to the will of God. Some hold that faithfulness to the gospel may at times require a break in institutional continuity, while others insist that such faithfulness can be maintained by resolving difficulties without breaks which lead to separation.Footnote 19
A more appealing description of the inter-Christian division on this very issue of institutionality is hardly possible. Against this background, it is quite evident that it is no easy job to include a church polity discussion in the ongoing ecclesiological ecumenical exchange. That exactly illustrates the need of Doe's courageous attempt to do so.
What follows constitutes some considerations as to the viability of his project. First, I make some remarks with regard to the issue of ‘normativity’, and then I will connect Doe's approach with some experiences in ecumenical life, in order to conclude with some fundamental issues of church polity.
NORMATIVITY
In his book, Doe reflects on what churches have in common in terms of normativity. It is helpful to introduce some distinctions here. The main issue is that of the normativity of church law in relation to the normativity of doctrine – and the academic question is to what extent legal science on the one hand and theology on the other can play a role in bridging those two types of normativity.
Basically, legal normativity (or the normativity of law, including church law) depends on its role in society: a system of laws is given in order to organise society, and all who live under that law are supposed to accept that system's normative authority – whether they agree with the rules or not, and whether they attribute any moral authority to them or not. This type of normativity is positive in nature: laws are valid for no other reason than that they have been enacted by the legislator. This is quite different from the normativity of religious doctrine in matters of faith and moral life. In the latter case, normativity is characterised first of all by moral authority: those who belong to that specific faith community are supposed to recognise the authority of doctrine with a free conscience, out of conviction. Therefore, there is a certain ‘margin of appreciation’ (to use a term from the legal vocabulary): no one can be compelled to believe and live in full agreement with the doctrinal and moral standards of the community to which one belongs.
This is, of course, too simplistic a picture of doctrinal authority. First of all, in history as well as in present-day Christianity there are many examples of faith communities interpreting doctrinal normativity in a way very similar to the normativity of law, and not seeming to acknowledge the fundamental significance of freedom of conscience at all. Second, it is church law that limits the exercise of freedom of conscience in most churches to some extent through church discipline, particularly with regard to the teaching and life of those in ordained ministry. However, this gives us all the more reason to speak about normativity in a nuanced way.
This is exactly where the normativity of both theology and legal science enter the picture. As branches of academic knowledge, they play a role in bridging the gap between legal normativity and doctrinal normativity. In science, normativity is linked to the methods used. This academic type of normativity is based on arguments, and it plays a critical role towards both other types of normativity. Theology tests the plausibility of doctrine, and legal science does the same in the field of positive law. To some extent, church polity is a combination of both, as the definition above shows where it speaks of this discipline as ‘the systematic analysis, evaluation and development of the sum total of established rules as a legal system … from the perspective of ecclesiology’.Footnote 20 Ecclesiology refers to the theological evaluation of the way in which churches understand themselves in doctrine.
In other words, from an academic perspective the normativity of church law should always be understood in connection with its background ecclesiology. It is the dialogue between the self-understanding and the valid regulations of a particular community that has to be stimulated by the exercise of church polity as an academic discipline.
THE RISK OF IDEOLOGY
In ecumenical practice, it is not at all easy to keep this dialogue going. There is one mechanism that I want to identify particularly in this context: the risk of an ideological use of positive church law. Long-existing legal practices can acquire a certain weight by virtue of the sole fact of their long existence: ‘This is how we have done it for centuries (church law); so, this is how we should do it (theology)’. In other words, legal normativity can acquire a pretence of doctrinal normativity, and therefore church law traditions and practices can seriously frustrate ecumenical progress.
In reflecting on two decades of involvement in the process of legislation of my church, including the valuable experience of co-drafting a new church order for the united church, it has become clear that people often argue about ‘principles’ of their respective church order traditions. A hot issue in this respect was, for instance, the so-called autonomy of the local congregations as practised in one of the participating churches, versus a stronger denominational authority as a matter of tradition in the others. Another one was the responsibility of the church to voice its concerns in the public domain. On a theological level such issues had been dealt with in the aforementioned Declaration of Consensus that laid the foundation for the process of drafting a new church order. With regard to the various issues of difference raised, the Declaration had concluded that no theologically fundamental issue was at stake in the existing differences in practice. Nevertheless, such arguments would pop up again and again.
Another example: in this process, there has been no serious discussion at all about the option of including episcopal office in the ordering of the new church. Over the last decades, before and after the unification in 2004, proposals were made several times to enter into a serious discussion about this option, but time and again they were turned down immediately with the sole argument that it is a Reformed principle not to have bishops.Footnote 21 A practice of nearly five centuries functions as an ideological framework, leaving no room whatsoever for a new – and more ecumenical – approach.
In the Reformed tradition, the academic exercise of the theological discipline of church polity has been characterised for centuries by such ideological features. The repetition of traditional views, born from the Reformation and its opposition to Roman Catholic canon law, and shaped by further conflict situations within the Dutch Reformed tradition itself, became a hallmark of church polity orthodoxy. Church polity practice, without further reflection, is often decisive in the way in which a faith community experiences its identity. Practice informs theology, and thereupon theology is used to legitimise practice. In order to be successful, Doe's project needs to take this kind of dynamic into account.
ECUMENISM AND CHURCH POLITY
According to Doe, doctrines divide but laws can unite churches. For the sake of argument, one can take the opposite position: if doctrines unite, laws still divide churches. Recent ecumenical developments present strong examples of this. In terms of doctrine, it was primarily the doctrine of justification that caused the major split in the Christian Church of the West. However, in 1999 the Roman Catholic Church and the Lutheran World Federation essentially came to agreement on this doctrine: representatives of both traditions signed the Joint Declaration on the Doctrine of Justification.Footnote 22 One might expect that this agreement would have had an enormous impact in terms of ecumenical rapprochement: if these traditions can agree on this core issue, it should be a matter of time before they would re-unite. This would not only be true for the Roman Catholics and the Lutherans but also for other historical protestant traditions such as the Reformed and the Methodist (the latter have formally agreed with the Joint Declaration). But it is not that simple, for several reasons.
First, there is the mental and spiritual attachment of people to their own tradition, often – as presented above – connected with an ideological view of church polity issues. Second, the very fact of the Reformation as a break in the unity of the Western Church makes it difficult to proceed. The key question is whether such a break in the continuity of the Church can ever be justifiable.Footnote 23 The BEM report on ministry speaks very cautiously about this issue:
In the history of the Church there have been times when the truth of the Gospel could only be preserved through prophetic and charismatic leaders. Often new impulses could find their way into the life of the Church only in unusual ways. At times reforms required a special ministry. The ordained ministers and the whole community will need to be attentive to the challenge of such special ministries.Footnote 24
It is clear that the Reformation churches are convinced that the early sixteenth century was such a ‘time that reforms required a special ministry’, whereas the Roman Catholic Church denies that. For all churches involved, their self-understanding is immediately at stake. That makes it extremely difficult to make ecumenical progress.
Third, the Reformation as a fact had a major impact on the understanding of the character of church law (or canon law) on both sides of the conflict. Breaking with the centuries-old structures of the mediaeval church implied the fundamental theological position that such structures could be changed or replaced. Ecclesia reformata semper reformanda (‘The church is reformed and always in need of being reformed’) is a well-known and popular, although not undisputed, rallying cry, particularly in the Reformed tradition within Protestantism.Footnote 25 Even though it is exaggerated in this form, it is at least true that from a Reformed perspective one could say: Ecclesia reformata semper reformabilis (‘The church is reformed and can always be reformed’). That is not only why Reformed churches have always been easily inclined to split, but it is also why such churches can easily unite: in most united churches listed by the World Council of Churches, at least one of the participating churches belongs to the Reformed tradition. When two Calvinistic denominations in the Netherlands united as the Protestant Church in the Netherlands, unification meant re-union: that is, bridging the gap that was caused by breaks in the one Dutch Reformed Church in the nineteenth century. In this case it was possible to refrain from a common judgement about the aforementioned breaks and to focus on the obligation to restore ecclesial unity, from the perspective expressed in a synodical declaration that ‘we would increase our guilt if we acquiesce in our separations’.Footnote 26 Apart from that, it was relatively easy to unite, because all three churches involved had the same basic church structures.
Fourth, to make it even more complicated, doctrine regarding ordained office developed in opposite directions after the Reformation. Although ordained ministry was not the issue on which the Reformation originally focused – neither Luther nor Calvin intended to break with episcopal office, let alone with ordained ministry – it was in the slipstream of decisions on grace, faith and election that some churches of the Reformation abolished episcopal office. Meanwhile, the Dutch Roman Catholic theologian Anton van Eijk has expounded how the Roman Catholic understanding of episcopacy has developed and consequently changed after the sixteenth century, as documents of the Second Vatican Council show.Footnote 27 This makes it even more difficult to bridge the gap with Protestantism. Finally, the separate development of church polity as a theological discipline in different traditions has created additional impediments in various respects, and particularly with regard to fundamental views of the character and theological significance of church structures.
In short, it is a mixture of practical arrangements and church polity regulations, socio-psychological factors and ecclesiological views that has so far made church polity an ecumenical problem rather than an ecumenical tool.
Norman Doe's book provides a solid foundation for ecumenical dialogue on such issues, because it gives ample evidence of how practically all confessional traditions within Christianity share common principles of church polity, or at least show profound similarities in their norms of conduct. Christian Law can, therefore, serve as a substantiation of many of the issues of convergence – or even consensus – listed in Common Vision. At the same time, it also gives a plethora of evidence of the existing and continuing differences. This can be illustrated further by focusing on the feasibility of the category of ius divinum (divine law) within church polity.
IUS DIVINUM?
We have to face the question of whether a church polity perspective can really help to overcome at least some of the differences listed by Doe. At first sight, it seems that Doe's common principles and profound similarities can only be assessed as long as we limit ourselves to a certain level of abstraction. Often such similarities are quite formal in character, for instance when Doe states that ‘All the traditions understand their laws to have a relationship with the law of God, which is conceived to be revealed in Holy Scripture’.Footnote 28 This statement seems to present a high degree of similarity, but in fact these regulatory systems are mutually exclusive in many respects. This can easily be shown in controversial issues such as the ordination of women. All parties involved will refer to Holy Scripture (and tradition) as authoritative, but the outcome can be very different.Footnote 29
Church polity mainly focuses on juridical aspects of the sets of regulations that are valid in internal and external communication and processes of decision-making. However, what makes such regulations valid, and who has the authority to develop and change regulations, and why, and within which limitations? This is where theology and legal philosophy meet. Is there any valid theological way of reasoning in this respect? It is in this context that the issue of ius divinum has to be addressed.
In the framework of his exposition of the purposes of ecclesiastical regulation, Doe spends about three pages dealing with the issue of ‘the law of God’Footnote 30 as a background to one of the principles of law common to Christian churches that he lists in an appendix to his book: ‘Church laws should conform and are subject to the law of God, as revealed in Holy Scripture and by the Holy Spirit’.Footnote 31 Most, if not all, churches would endorse this principle. But what about the way in which it functions in different Christian traditions? Whereas churches such as the Roman Catholic Church and the Orthodox churches characterise certain canon laws as divine law, other churches would never use that kind of language; they would be more cautious in this respect, and say instead that ‘law should reflect the revealed will of God’,Footnote 32 a formulation that both prevents the identification of human law and divine will (in its use of the verb ‘reflect’) and recognises the role of hermeneutics in this respect (with its focus on ‘revealed’).
Roman Catholic canon law claims universality with regard to those canons that are based on divine law (ius divinum) or on natural law (ius naturale). Canons such as those on the fundamental distinction between clerics and lay persons,Footnote 33 on the position of the Pope as ‘Bishop of the Roman Church’Footnote 34 and on bishops in generalFootnote 35 are seen as part of divine law. Natural law is the foundation of canons such as those on marriageFootnote 36 and on ecclesiastical goods.Footnote 37 Such universal norms cannot be changed, although they can be reformulated and refined. However, many canon law stipulations are matters of ‘mere ecclesiastical law’ (ius mere ecclesiasticum): in principle they can be changed with a view to contextual circumstances. There is an ongoing internal debate on the question of whether issues such as the exclusive ordination of male personsFootnote 38 belong to the area of mere ecclesiastical law. The Codex itself does not define this particular canon as a matter of divine law. Recently, before Pope Francis was elected, there were suggestions that it might be. If it were to be accepted as such, there would be no possibility of revoking that decision, because divine law is unchangeable.
Protestants differ on the issue of divine law, but even if such terminology is in use in certain churches and traditions it has a different character. For the Reformed tradition, the position of Karl Barth is exemplary. Because the risen Christ is the one and only Lord of the Church, the church is a ‘Christocratic brotherhood’, and as the body of Christ it is the earthly historical form of existence of its Head, Jesus Christ.Footnote 39 Barth deals with the issue of divine law in the context of his exposition of four criteria for church law, four ‘presuppositions’ with ‘a demonstrable theological validity for all Church law’:Footnote 40 church law has to be a law of service, and it has to be liturgical, living and exemplary. In this context it is the third criterion that counts. As living law, church law always has to be ready to respond anew to changing circumstances: it is dynamic, human; it is never ‘done’, always in a process from worse to better, because church law is a matter of ongoing obedience to Christ. So, fundamentally, church law is ius humanum and never ius divinum. It is only the ‘Christocratic principle’ itself that that can be called ‘divine law’: the Church ‘must always remember that the ius divinum of Christocracy is not only its origin but also its limit, and thus understand itself in all strictness as ius humanum’.Footnote 41 This indicates exactly the limitations of church polity as such: church law is essentially provisional. Change and renewal are always possible, in obedience to Christ, and therefore under the guidance of the Holy Spirit: ‘the fact that we leave it to the Holy Ghost does not mean that we leave it to the rash and wilful, but that we ask ourselves unitedly and conscientiously, and in the light of Holy Scripture, what obedience means in this matter’.Footnote 42
The church order of the Protestant Church in the Netherlands largely reflects this Barthian position. It does not use the term ‘divine law’ as such. The most pertinent phrase in this respect is this: ‘To focus the congregation on salvation and to keep it to its call in the world the public office of Word and Sacrament was given on the part of Christ’.Footnote 43 But, in principle, even this sentence could be reshaped or withdrawn by the general synod.
The German Roman Catholic canon lawyer Helmuth Pree presents a thorough exploration of the concept of ius divinum. Traditionally, in spite of differences in interpretation, its specific qualities can be reduced to a more or less common denominator: ius divinum is immutable, inderogable, invalidating all other human laws, unlimitedly valid and indispensable.Footnote 44 However, history shows that this is too simple a picture:
In some cases legal norms, notwithstanding their former character … as iuris divini, were cancelled or at least essentially changed at a later time: for instance the prohibition of taking interest …, the explicit approval of religious freedom and of the freedom of conscience by Vatican II … in direct contrast to the condemnation by the magisterium in the second half of the 19th century.Footnote 45
Pree calls for ‘an elaborate theory of concretization’:Footnote 46
What has been posited as a ius divinum is then in need of a concretizing decision whether it is to be recognized as a legal principle or to be transformed into a legal norm. Between divine prescription and legal decision in an individual case several steps of mediation are necessary.Footnote 47
He distinguishes four steps, from supreme, not further deducible guidelines (some of them based in the Bible); via partial values, partial goods and system-founding legal principles; and the legal system in force; to the decision in an individual case:Footnote 48 ‘Each level of concretization must consist of both orientation to the will of God and the facts, to which the law has to be applied.’Footnote 49 Pree pleads in favour of making use of biblical hermeneutics in canon law: ‘The traditional doctrine of immutability and indispensability of the norms of Ius divinum must be revised and completely rethought.’Footnote 50 In fact, he makes it clear that no ecumenical progress is possible in this respect without recognition of the historicity and contextuality of church law.
Such recognition includes the awareness of power issues involved in – and often hidden behind – theological and legal points of view. Whereas the changeable and provisional character of any stipulation in church law is characteristic of most Protestant views of church polity, Roman Catholic canon lawyers tend to focus on the undisputable principles as given in divine law. In both cases, however, the fear of giving up existing positions of power may be an important motive to stress such positions. However, theological and legal questions implicit in such contrasting views need to be dealt with in an interconfessional, ecumenical and international academic exchange. Such dialogue could indeed serve the ecumenical movement, particularly if it could lead to a shared view of the character of church law. If Norman Doe's Christian Law is taken as a starting point for this exchange, ecumenical dialogue might open up new horizons.
