INTRODUCTION
Although the 44 member churches of the Anglican Communion are in communion with the See of Canterbury, each church is autonomous, free to govern itself according to its own legal system.Footnote 2 Within each institutional church, general law (typically provincial) is created by a synod or other assembly representative of bishops, clergy and laity, and laws made at more localised levels (such as diocesan law created by the diocesan synod of bishop, clergy and laity) must be consistent with the general law.Footnote 3 Some churches have a code of canons only.Footnote 4 Most have a constitution, canons, and other regulatory instruments,Footnote 5 including: rules and regulations,Footnote 6 ordinances,Footnote 7 resolutions,Footnote 8 and liturgical rubrics found in the service books.Footnote 9 Alongside written laws are less formal and sometimes unwritten sources: customs or tradition,Footnote 10 the decisions of church courts,Footnote 11 the English Canons Ecclesiastical 1603,Footnote 12 or pre-Reformation Roman canon law.Footnote 13 Whereas offices and institutions exist at the global level of the Anglican Communion, namely, the instruments of unity and communion (Archbishop of Canterbury, Lambeth Conference, Primates' Meeting and Anglican Consultative Council), there is no body at this level competent to make decisions binding on individual churches.Footnote 14 There is no body of global law in Anglicanism: the decisions of the institutional instruments of unity have persuasive moral authority not enforceable juridical authority, unless incorporated in the laws of member churches. Rather, ecclesial communion in Anglicanism is maintained by non-juridical ‘bonds of affection’.Footnote 15 However, recent tensions within the Communion have stimulated discussion of the meaning and limits of the bonds of affection. This has led to exploration of ways in which the laws of churches may contribute to more visible global ecclesial communion in Anglicanism.Footnote 16
BACKGROUND
In March 2001, at Kanuga, North Carolina, USA, on the basis of a paper discussed at the event,Footnote 17 the Primates' Meeting decided to explore whether there is an unwritten common law shared by the member churches of the Communion. A Legal Advisers Consultation met in Canterbury in March 2002 to test the hypothesis. The Consultation formulated six conclusions:
i. There are principles of canon law common to the churches of the Anglican Communion;
ii. Their existence can be factually established;
iii. Each province or church contributes through its own legal system to the principles of canon law common within the Communion;
iv. These principles have strong persuasive authority and are fundamental to the self-understanding of each of the member churches;
v. These principles have a living force, and contain within themselves the possibility for further development; and
vi. The existence of the principles both demonstrates and promotes unity in the Communion.Footnote 18
At Canterbury in April 2002, the Primates' Meeting discussed a report on the Consultation and concluded: ‘The Primates recognized 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”’. The Meeting also endorsed the suggestion to establish a network of lawyers to work on a draft statement of the principles. Subsequently, at Hong Kong in September 2002, the Anglican Consultative Council welcomed the establishment of a Network of Anglican Legal Advisers to:
i. Produce a statement of principles of Canon Law common within the Communion;
ii. Examine shared legal problems and possible solutions; and
iii. Provide reports to the Joint Standing Committee of the Primates’ Meeting and the Anglican Consultative Council as the work progresses.
In October 2003, the Primates' Meeting urged completion of the work, as did the Lambeth Commission in its Windsor Report (2004).Footnote 19 A drafting group of the Legal Advisers Network met in Toronto (October 2005) and Nassau (April 2006) to work on drafts of the statement, and meetings of the full Network are scheduled for late in 2007 in order to finalise the statement (prior to the Lambeth Conference in 2008).
The Legal Advisers Consultation of 2002 examined 44 candidate principles formulated prior to the event, of which it agreed 43;Footnote 20 the exercise was to determine whether these principles surface explicitly or implicitly in the laws of the churches. What follows is an explanation of each of its six conclusions.
There are principles of canon law common to the churches within the Anglican Communion
The category ‘the principles of canon law’ is already formally recognised by at least four Anglican churches: the Provinces of the West Indies,Footnote 21 Southern Africa,Footnote 22 Central AfricaFootnote 23 and Nigeria.Footnote 24 It is also recognised by other traditions.Footnote 25 Many churches in the Communion explicitly appeal to principles in their own legal systems,Footnote 26 as the foundation for more detailed rules, giving the latter shape, coherence, meaning and purpose. Principles of canon law tend to take the form of general propositions or maxims that express fundamental ecclesial values; some are descriptive,Footnote 27 others prescriptive.Footnote 28 Principles differ from rules (which apply to specific circumstances) and enjoy ‘a dimension of weight’.Footnote 29 They may also articulate theological values.Footnote 30 But some principles may have no obvious theological dimension, and may indeed be shared with secular legal systems, such as the principle that individuals should not be inflicted with penalties except in accordance with law.Footnote 31 Many are rooted in the inherited canonical tradition,Footnote 32 in its various forms.Footnote 33
The existence of the principles can be factually established
The principles of canon law common to the churches are induced from the factual coincidences of actual laws of each church. Their recognition is a scientific task. There are, as a matter of fact, profound similarities between the laws of Anglican churches: identifying the similarities is merely an exercise in careful observation based on a comparison of legal texts, juxtaposing one with another. Often, legal similarities are generated by the churches using a common historical source, such as a Lambeth Conference resolution,Footnote 34 or rubrics of the Book of Common Prayer 1662.Footnote 35 From these similarities, shared general principles emerge. For instance: from similar rules on ‘excommunication’, ‘suspension’, ‘exclusion’ or ‘repulsion’ from holy communion, may be induced the principle that eucharistic discipline is ultimately in the keeping of the bishop.Footnote 36 The theological basis for exclusion may be found in scripture,Footnote 37 and doctrine;Footnote 38 and the historical antecedents of the principle are rooted in the canonical tradition.Footnote 39 The similarities of texts on excommunication produce a general proposition, which underscores a fundamental ecclesial value.Footnote 40
Each church contributes through its own legal system to the principles of canon law common within the Communion
The Anglican ius commune, as the collective effect of similarities between legal systems, is not imposed from above. The immanence of common principles in actual legal similarities means that each Anglican church is the legislator of the ius commune. Whenever a church legislates, it contributes to the ius commune and its law may function as a precedent for other churches. Whilst churches are autonomous, as a matter of practice they often adopt or adapt provisions in the legal systems of fellow churches.Footnote 41 The adoption of the same rule by other churches adds to the store of similarities, and, in turn, these similarities generate a common principle. For example: Canon 21 of the Fourth Lateran Council 1215 forbids priests to breach the seal of the confessional; this general principle is repeated by the Church of England in Canon 113 of the 1603 Canons; and it is adopted by the Province of Southern Africa in its Prayer Book 1989. Successive unilateral legislative adoptions by churches might themselves augment the authority of the principle.
The principles have a strong persuasive authority and are fundamental to the self-understanding of each church in the Communion
The principles common to the churches of the Communion have the appearance of laws (they may be preceptive, prohibitive or permissive), but they are not themselves laws: they are principles of law.Footnote 42 ‘Laws’ are found in the enforceable instruments (constitutions, etc) of each institutional church; the principles of canon law are derived from laws and are not binding locally unless the laws of that church permit this.Footnote 43 Laws which enable, for instance, participation of the laity in government tell us a great deal about the Anglican understanding of representative ecclesiastical polity (as compared, for example, with Roman Catholicism).Footnote 44 Often, laws of churches themselves portray a principle as having a deeper authority, beyond that of the formal law in which it appears, through its antiquity or its underlying spiritual origin: for instance, the law of the former Church of India, Pakistan, Burma and Ceylon provides that the church ‘has received the principles and customs set out in the … Declarations from the Holy Catholic Church of ages past’; moreover, the church ‘believes that it was by the guidance of the Holy Spirit that those principles came to be recognised and those customs adopted’.Footnote 45
The principles have a living force, and contain in themselves the possibility of further development
The idea here is that each church through its own legislative activity may contribute to or subtract from the store of principles, particularly when such developments are replicated around the Communion. For example, churches are increasingly legislating to forbid racial discrimination in the membership and government of the church;Footnote 46 also, churches are developing rules on the admission of the unconfirmed to Holy Communion, particularly children.Footnote 47 Such examples may indicate the evolutionary character of the ius commune of the Anglican Communion.Footnote 48 Moreover, differences, and arguably conflicts, between the details of laws are in the nature of conditions under which shared principles are applied. The principles are shared; differences exist with regard to their detailed application in each church.Footnote 49 For example, laws vary as to the grounds for exclusion from holy communion; these include: ‘living in grievous sin’ (England); ‘malice and hatred’ (Canada); ‘bringing the church into disrepute’ (Wales) and ‘indictable offences’ (West Indies). The laws of all churches spell out the grounds for exclusion. Whilst the grounds vary, the principle of exclusion from communion is common to all churches.
The existence of the principles both demonstrates unity and promotes unity within the Anglican Communion
The Anglican ius commune might be perceived by some as a threat to the autonomy of the member churches, or as a potential contributing factor to global divisions.Footnote 50 However, the ius commune is itself a product of the exercise of the autonomy of churches and of their promotion of communion through their contributions to it. Their autonomy, which may be understood as manifested in the principles they have generated, is unaffected: churches remain free juridically to depart from them. Indeed, that legal systems converge in shared principles of canon law common to the churches is a concrete expression of the very character of Anglicanism and its understanding of church. The collective effect of the similarities between individual canonical systems is a major contribution both to Anglican identity and cohesion. The principles indicate concretely the unity Anglicans share at global level and their elucidation affirms the integrity of the values reflected in them. Moreover, recognition that individual churches contribute to the ius commune underscores their own individual responsibility for the shape and maintenance of Anglican identity. An understanding of first principles may also be a useful resource for churches seeking to reform and develop their own legal systems.Footnote 51
THE DRAFTING PROCESS
The Legal Advisers Consultation 2002 agreed broadly (but was not overly exercised by the issue) that a number of tests may be formulated to establish whether a principle of canon law is one common to the churches:
i. The Unanimity Test: does the principle appear in the laws of all Anglican churches? For example: in all churches, candidates for admission to the office of diocesan bishop must be elected to that office.Footnote 52 And/or:
ii. The Majority Test: does the principle appear in the laws of a majority of Anglican churches? For example: a minister duly ordained as priest or deacon may officiate in a diocese after receiving authority to do so from the diocesan bishop.Footnote 53 And/or:
iii. The Face Validity Test: is the principle accepted by most Anglican churches though it is not expressly found in their laws? For example: later laws abrogate earlier laws. And/or:
iv. The Reversal Test: if the principle was reversed would that reversed proposition be accepted as not being part of the Anglican ius commune? For example: the unacceptability of the proposition that ‘assistant bishops are not subordinate to the overriding jurisdiction of the diocesan bishop’ would suggest that the proposition ‘assistant bishops are subject to their commissioning bishop’ is a principle of Anglican common law.Footnote 54 And/or:
v. The Common Source Test: can the principle be traced back to a common, historical source even when some legal systems may be silent on the matter? For example: clergy must obey the lawful commands of their bishops.Footnote 55 And/or:
vi. The Canonical Tradition Test: can the principle be traced back to or does it equate with a principle of the canonical tradition? For example: priests and deacons must not engage in any occupations or habits which are inconsistent with their sacred calling.Footnote 56 And/or:
vii. The Fundamental Ecclesial Value Test: is the principle a general, foundational proposition expressing a basic ecclesial value, even if it does not appear in the formal laws of all churches? For example: a priest must not disclose information received in the confessional.Footnote 57 And/or:
viii. The Theological Dimension Test: if the principle has explicitly or implicitly a distinctive theological dimension, then it may be part of the common law. For example: confirmation is validly administered by the episcopal laying on of hands. And/or:
ix. The Perception Test: is the principle understood as one held in common with fellow churches of the Communion? For example: there should be no discrimination in the membership and government of a church.Footnote 58 And/or:
x. The Reconciliation Test: are the differences or conflicts between the rules of a minority of churches reconcilable? For example: in some churches, such as the Church in Wales, deposition from holy orders is reversible but in others, such as the Church of Nigeria, it is not; yet all churches operate the principle that clergy may be lawfully deposed in appropriate cases. And/or:
xi. The Global Consensus Test: would the breach of the principle result in a substantial risk of serious division at the global level of the Communion?
An initial draft statement of one hundred principles was placed on the website of the Anglican Communion Network of Legal Advisers in the summer of 2005. It was this draft which was considered by the Network group in Toronto (2005) and Nassau (2006) and which awaits formal discussion by the full Network late in 2007.Footnote 59 This draft text provides:
A ‘principle of canon law’ is a foundational proposition or maxim of general applicability which has a strong dimension of weight, is induced from the similarities of the legal systems of churches, derives from the canonical tradition or other practices of the church, expresses a basic theological truth or ethical value, and is about, is implicit in, or underlies canon law.Footnote 60
The 100 principles are arranged in the draft under 8 Parts; each of the 100 macro-principles consists of micro-principles, of which there are approximately 650. Part I, ‘Order in the Church’, deals with the necessity for law in ecclesial society, the role of law as the servant of the church, the conditional nature of church law, the sources, subjects and forms of church law, the rule of law in the church, the requirement of authority, the effect and application of law and the interpretation of law.Footnote 61 Part II is concerned with ‘The Anglican Communion’ and includes principles relating to the nature of the Communion, the Instruments of Unity, the freedom of self governance of each church, mutual respect between churches, juridical presumptions and the mutual availability of ministrations.Footnote 62 Principles of ‘Ecclesiastical Government’ in Part III are on: polity, leadership and authority, administration, delegation, representative church government, legislative competence, legislation, lay participation in church government, visitations of a supervisory jurisdiction or a pastoral ministry, and judicial process in courts and tribunals.Footnote 63
Part IV consists of principles of ‘Ministry’, such as the principle of the threefold ordained ministry of bishops, priests and deacons, public ministry as service, the professional ethic of public ministry, the exercise of office, the office of primate, archbishops and metropolitical authority, admission to the episcopate, ministry of diocesan bishops, assistant bishops, the ordination of priests and deacons, authority to minister in a diocese, ministry common to priests and deacons, the ministry of priests with care of souls, the ministry of deacons, pastoral care and availability, termination of ordained ministry, the role of the laity, classes and rolls of church membership, rights and duties of the faithful, lay ministers and officers in the church and professional and personal relationships in ministry.Footnote 64 ‘Doctrine and Liturgy’ are treated in Part V, including principles on doctrine and profession of the faith, the sources of doctrine, the development of doctrine, preaching, teaching and outreach, theological differences and freedom of conscience, doctrinal discipline, public worship and liturgy, the making and authorisation of forms of service, the administration of public worship, the provision of public worship, choice of alternative forms of service, control over public worship and liturgical discipline.Footnote 65
Principles relating to the major rites of passage (baptism, confirmation, marriage and burial) as well as principles concerning rituals such as holy communion, confession and exorcism can be found in Part VI, ‘The Rites of the Church’.Footnote 66 Part VII contains principles relating to ‘Church Property’, including ownership and administration of church property, church buildings and other places of worship, clergy residences, the keeping of ecclesiastical registers and records, the principle of stewardship, ministers' standards in relation to finance, the distribution and control of funds, sources of income, investments, insurance and clergy stipends and pensions.Footnote 67 The final section, Part VIII on ‘Ecumenical Relations’, features principles relating to ecumenical responsibilities, freedom, recognition, agreement, collaboration, admission and reception as well as the admission of non-Anglicans to holy communion.Footnote 68
Other than the sections on church order,Footnote 69 and the Anglican Communion,Footnote 70 the grouping of principles into the eight Parts is conditioned by the systematisation of laws employed by the member churches, treating as they do ecclesiastical governance, ministry, doctrine and liturgy, ecclesiastical rites, church property and, increasingly, ecumenical relations.Footnote 71 The draft statement of principles is not exhaustive. It omits, for example: civil law principles which are often incorporated into church laws, such as the doctrine of consensual compact as the basis upon which ecclesiastical jurisdiction is founded and exercised in most secular legal systems;Footnote 72 the detailed procedures of church assemblies;Footnote 73 and specialist ministries.Footnote 74 However, it would be possible to formulate principles on such subjects.
A variety of sources is employed, from which the principles are derived. Most are from church constitutions and canons,Footnote 75 many from service books (which themselves enjoy canonical authority), and their liturgical norms.Footnote 76 A great number come from historical sources (the authority of which may be canonically recognised or adopted by the laws of churches), such as the Book of Common Prayer 1662,Footnote 77 from the canonical tradition,Footnote 78 from divine law,Footnote 79 or from the practice of the church universal.Footnote 80 Others are rooted in a theological idea expressed in laws,Footnote 81 or are derived from guidance issued by ecclesiastical authorities to supplement and explain church law.Footnote 82 Whilst the vast majority of the principles derive from similarities between the written laws of churches, some are based on unwritten assumptions, general propositions implicit in church laws.Footnote 83 The juridical values of clarity, conciseness and consistency govern the form of the principles, which themselves are cast in a variety of different juridical formulae: most are permissions (‘may’),Footnote 84 many are precepts (‘shall’, ‘must’),Footnote 85 some are prohibitions (‘shall not’, ‘no-one shall’);Footnote 86 many are exhortations (‘should’), expressing aspirational norms,Footnote 87 and some are in the form of maxims (‘is’).Footnote 88
THE ANGLICAN PROJECT IN CONTEXT
It is instructive to compare this Anglican project with the approaches of other international ecclesial communities to global ecclesiastical order. The following section does so in relation to five matters: nature (and form), subject matter, purpose, theological basis and enforceability. Whilst no other global ecclesial community has engaged in a project similar to that of the Anglican ius commune (articulating principles induced from the similarities of the laws of their member churches), their instruments fall into three basic categories: codes of canon law (Roman Catholic and Eastern Catholic); customs (Orthodox, canonical tradition); and constitutions (Lutheran, Reformed, Methodist and Baptist) and statutes (Old Catholics in the Union of Utrecht).Footnote 89
Nature and form
The Anglican ius commune, as a collection of principles, is similar to the code of the Latin or Roman Catholic Church, but different insofar as the former is generated from the grass roots by the legislative activity of the member churches of the Communion, whereas the latter is derived from a central authority, the papacy. The Latin Code of Canon Law 1983 was promulgated by Pope John Paul II after a revision process following the Second Vatican Council. As ‘universal law’, the code (along with papal decrees, and authentic interpretations of a legislator – judicial decisions do generate law)Footnote 90 applies to the Latin Church in all parts of the world. The Anglican ius commune seems to resemble a little more the Code of Canons of the Eastern Churches, the 21 oriental churches reunited with and acknowledging the supremacy of the Roman pontiff. Promulgated by Pope John Paul II in 1990,Footnote 91 the code, in which ‘the ancient law of the Eastern Churches has been mostly received or adapted’, represents their ‘common law’: it embraces ‘the laws and legitimate customs’ of the entire Church and those common to all the Eastern Churches.Footnote 92
Like the Anglican Communion, the Orthodox Church is a family of self-governing churches with no centralised organisation.Footnote 93 It has no universal code. The ‘law of the church’ globally is, rather, ‘her canonical tradition’, ‘an outgrowth of the holy canons’.Footnote 94 The holy canons stem from three main sources: ecumenical synods (representing the universal church), local synods (subsequently ratified by the ecumenical synods as representing the tradition of the universal church), and the Fathers of the church. These are contained in several collections; the most widely-used today in Greek-speaking Orthodox churches is the Pedalion.Footnote 95 Nevertheless, some Orthodox churches may, at the inter-church level, organise themselves on the basis of a constitution, such as that of the Standing Conference of Canonical Orthodox Bishops in the Americas.Footnote 96 No attempt has been made to articulate what such instruments share, though whether Orthodox law should be codified is the subject of debate.Footnote 97
Unlike the Anglican ius commune, the constitutions of other global ecclesial communities are not an articulation of principles induced in ascending fashion from similarities between the regulatory instruments of their member churches. They are, rather, instruments de novo enabling worldwide collaboration in matters of common concern,Footnote 98 whilst preserving the autonomy of member churches: the Lutheran World Federation is ‘organized under’ its constitution (and supplementary bylaws) as an ‘instrument of its autonomous member churches’;Footnote 99 the World Alliance of Reformed Churches adopted its present Constitution in 1970;Footnote 100 the World Methodist Council has a constitution but the Council has no legislative authority over member churches;Footnote 101 and the Baptist World Alliance has a constitution that ‘recognizes the traditional autonomy and interdependence of Baptist churches and member bodies’.Footnote 102
Subject matter
There is considerable but not exact convergence between global ecclesial communities regarding the subjects treated by their regulatory instruments. The Latin code is comprehensive and treats: general norms, the people of God, the teaching office, the sanctifying office (the sacraments), temporal goods, sanctions and processes.Footnote 103 Whilst the canonical tradition in Orthodoxy has a comprehensive compass, Orthodox inter-church instruments have a more limited focus: the constitution of the Standing Conference of Orthodox Bishops in the Americas, for instance, deals only with membership, objectives, authority and structure, committees and meetings.Footnote 104 The statute of the Old Catholic Bishops of the Union of Utrecht is similar.Footnote 105 A minimalist approach is employed in the constitutions of the Lutheran World Federation,Footnote 106 World Alliance of Reformed Churches,Footnote 107 and Baptist World Alliance.Footnote 108 The subject-matter of the Anglican ius commune, on church order, communion relationships, government, ministry, doctrine, liturgy, rites, property and ecumenism, most resembles the approaches of the Orthodox and Latin churches.
Purpose
Unlike the Anglican ius commune, a key function of the instruments of other global ecclesial communities is to organise the global entity institutionally.Footnote 109 However, the notion that the Anglican ius commune demonstrates and promotes identity and inter-church unity is commonplace in the instruments of other global ecclesial communities, but in different ways. The Old Catholics' statute seeks ‘to promote and to realize’ communion; it requires the churches, for example, to ‘maintain the catholicity, doctrine, and worship in apostolic succession’.Footnote 110 The constitution of the Standing Conference of Canonical Orthodox Bishops in the Americas enables the churches, through the conference, ‘to actualize … unity in all those fields in which a common effort is required’.Footnote 111 One strategic goal of the constitution of the Lutheran World Federation is to unite the churches, strengthen them, and help them ‘to act jointly in common tasks’.Footnote 112 Similar goals appear in the constitutions of the World Alliance of Reformed Churches,Footnote 113 World Methodist Council,Footnote 114 and Baptist World Alliance.Footnote 115 The Latin Code ‘facilitates … an orderly development in the life of both the ecclesial society and of the individual persons who belong to it’; laws do not replace faith, grace and charity;Footnote 116 the supreme law is the salvation of souls.Footnote 117 Roman canonists stress the spiritual, pastoral, educative, protective, unifying and ecclesiological purposes of canon law.Footnote 118 Similarly, in the Orthodox tradition, canon law is ‘at the service of the Church … to guide her members on the way to salvation’; its main function is ‘the spiritual growth of the faithful’.Footnote 119
Theological Basis
The notion that principles of the Anglican ius commune often articulate theological ideas is also commonplace in the instruments of other global ecclesial communities. For Roman Catholic canonists, theology is a direct (material) source for canon law.Footnote 120 Theology concerns judgment based on knowledge obtained through revelation and canon law imposes a decision based on that judgment: ‘every single piece of law in the church must be in the service of values either defined or at least controlled by theological reflection’.Footnote 121 Others see canon law as ordinatio fidei.Footnote 122 While some Orthodox writers separate theology and canon law,Footnote 123 in the Lutheran and Reformed tradition: ‘the external juridical order of the church should be at the service of the proclamation of the word’; thus, ‘the external order must be tested ever anew by the confession of faith, and on no level of legal church life can juridical questions be solved without relation to the church's confession’;Footnote 124 church law is not a ‘constitutive’, but a ‘consecutive’ and ‘regulative’ element of a church.Footnote 125
Enforceability
A key difference between the Anglican ius commune and instruments of other global ecclesial communities concerns enforceability. Whereas the Anglican entity does not bind internationally but is persuasive, the Latin Code binds all the faithful directly in the particular churches, bishops, clergy and laity alike.Footnote 126 The Eastern catholic code is similar.Footnote 127 In Orthodoxy there is a lively debate as to whether the canonical tradition binds in the sense of letter or spirit.Footnote 128 ‘Acceptance’ of its constitution is required for membership of the Lutheran World Federation.Footnote 129
At this point, it is worth noting that the Anglican ius commune project is separate from, but related to, the process underway for adoption of an Anglican Covenant. The Lambeth Commission, in its Windsor Report, proposed a juridical adoption of a covenant, with each church enacting a brief law, a ‘communion law’,Footnote 130 authorising entry to the covenant.Footnote 131 The Covenant Design Group (Nassau, 2007) proposes adoption through formal synodical processes in each church.Footnote 132 The Windsor draft covenant itself proposed ‘respect’ by each church for the principles of canon law common to the churches of the Communion.Footnote 133 The Nassau draft covenant proposes that the churches commit themselves to seek a common mind about essential matters ‘consistent with … the canon law of our churches’;Footnote 134 the Primates 2007 also considered that ‘Canon Law should reflect and promote global Communion’.Footnote 135
THE ECUMENICAL SIGNIFICANCE OF THE ANGLICAN IUS COMMUNE
Importantly, acknowledgement of an Anglican ius commune provides an aid for ecumenical partners seeking a global understanding of Anglicanism, not least those non-Anglican churches that also participate in the canonical tradition.Footnote 136 The recognition by Anglican churches of ‘the principles of canon law’ suggests that canon law itself is perceived as a generic phenomenon, having an existence independent of the legal systems of particular churches and communions. Canon law and its principles overarch individual church legal systems.Footnote 137 By way of analogy, canon law may be postulated as an entity in the same way as, in the secular world, civil law or common law. In the secular world, the common law or the civil law are often understood as having an existence independent of the states that operate them. The common law or the civil law is particularised in an individual secular state. As such, people talk of a ‘common law system’ or a ‘civil law system’.Footnote 138 Similarly, Anglican legal systems (like Roman Catholic or Orthodox) are ‘canon law systems’. Furthermore, the canonical tradition underpinning such systems links churches one to another. These churches live out, in their juridical orders, the canonical tradition. Whether they are conscious of the fact or not, Anglican churches participate in, or belong to, the canon law tradition by perpetuating it through their own legal systems.
In turn, it is possible that the Anglican ius commune project might offer a model for the wider ecumenical enterprise itself. Of the member churches of the global ecclesial communities discussed above, each institutional church has its own regulatory system. In the Latin Church, ‘particular laws’ apply to a specific territory (a particular church,Footnote 139 such as a diocese) or a group of people (such as a religious community).Footnote 140 Each Eastern Catholic church is sui juris (not a concession of the Latin Church), with its own juridical system operative within the common law of the Code of 1990.Footnote 141 In Orthodoxy, each local church is either autocephalous (one which elects its own primate) or autonomous (one which elects its primate with the participation of the primate of an autocephalous church), in communion with its sister churches; the Greek Orthodox Archdiocese of America, for example, an eparchy under the canonical jurisdiction of the Ecumenical Patriarchate of Constantinople, is regulated by a Charter, the Holy Scriptures, the Holy Canons and the regulations promulgated by it; and, as to canonical and ecclesiastical matters not provided therein, by the decisions thereon of the Holy Synod of the Ecumenical Patriarchate.Footnote 142
Lutheran churches generally employ constitutions and bylaws: the Lutheran Church of Australia, for instance, has a central constitution, bylaws, rules and regulations (which may be amended by its General Synod representative of congregations and pastors), and it recognises custom.Footnote 143 In turn, each district of the church, and each congregation within a district, has its own constitution and bylaws, which must be consistent with the central constitution and bylaws.Footnote 144 By way of contrast, Presbyterian churches employ systems of ‘law’,Footnote 145 or of ‘church order’.Footnote 146 Other churches employ a plethora of regulatory instruments: in Britain, for example, the Methodist Church has its Constitutional Practice and Discipline expressing ‘Methodist Law and Polity’;Footnote 147 the United Reformed Church has its Scheme of Union and Manual.Footnote 148
An examination of these laws reveals a wealth of substantive similarities (and, not surprisingly, differences) between the churches. Some examples may be offered. In government, the principle that authority in the church is legislative, executive and judicial (though churches differ in the distribution of such functions) surfaces in the laws of the Roman Catholic,Footnote 149 Old Catholic,Footnote 150 Orthodox,Footnote 151 Anglican,Footnote 152 Lutheran,Footnote 153 PresbyterianFootnote 154 and United Reformed churches.Footnote 155 In ministry, the principle that no minister may be disciplined except by due process (though disciplinary powers are assigned to different institutions) appears in the laws of the Roman Catholic,Footnote 156 Old Catholic,Footnote 157 Orthodox,Footnote 158 Anglican,Footnote 159 LutheranFootnote 160 and Presbyterian churches.Footnote 161 In doctrine, the principle that the faithful must not publicly dissent from the ecclesiastical doctrine (though laws differ as to which members of the faithful are subject to this) is shared by the Roman Catholic,Footnote 162 Orthodox,Footnote 163 Anglican,Footnote 164 LutheranFootnote 165 and Presbyterian churches.Footnote 166 In worship, that the faithful must gather for worship regularly appears in the laws of the Roman Catholic,Footnote 167 Anglican,Footnote 168 LutheranFootnote 169 and Presbyterian churches.Footnote 170 In relation to rites, that baptism (to which rights and duties attach) effects incorporation into the church universal appears in the instruments of the Roman Catholic,Footnote 171 Orthodox,Footnote 172 Anglican,Footnote 173 Lutheran,Footnote 174 PresbyterianFootnote 175 and Methodist churches.Footnote 176 What the Anglican ius commune project shows is that a comparative approach to laws and other regulatory instruments can be deployed imaginatively in ecumenism, through the induction of common principles, to determine in practical ways (despite differences in doctrine) both the scope for and concrete limits on greater visible unity.Footnote 177
CONCLUSIONS
This article is not an exhaustive study of the emergent Anglican ius commune. Nor does it provide a theological evaluation of the principles. The ius commune idea has emerged at a time of great tension in the worldwide Anglican Communion, and doubtless some may see a causal connection. However, this exercise might have been undertaken, with the same results, at any time. The Anglican ius commune concept is not revolutionary; its articulation merely describes legal facts. Nor is the ius commune a binding global legal system imposed by a central Anglican authority. It is not ‘a top-down’ entity (like the Roman Catholic Code of Canon Law), but a ‘grass-roots’ development: it emerges organically from the exercise by each church of its own autonomy through its own legal system. The common principles of canon law describe factually what binds Anglicans together in terms of what they share juridically. But it is also more than this. The innovative character of the ius commune is that it is an expression for the first time in one document of convergent principles of Anglican canon law, and the numerous benefits of clarity and certainty that flow from that articulation. Moreover, it indicates a collective commitment by the churches of the Communion to a particular way of being part of the church universal. In this respect, it also represents a major resource for ecumenical dialogue, and perhaps even a model for similar projects between ecumenical partners. Finally, as each local church creates for itself its own legal system, as a natural ecclesiastical function, so the ius commune may be understood, perhaps especially so in this era of perceived globalisation, as a natural function of the international ecclesial community of the worldwide Anglican Communion. We await with interest discussion of the draft statement of principles of canon law by the Anglican Communion Legal Advisers' Network, and its report to the Joint Standing Committee of the Primates' Meeting and the Anglican Consultative Council, as the Communion prepares the way for the Lambeth Conference 2008.
