The first paragraph of the introduction to the Reverend Dr Marjory MacLean's book consists of a single, striking sentence: ‘Christian people try to obey God’. The sentence says a lot about her approach to a subject that should be of interest to people, including lawyers, outwith Scotland as well as within it. This book is about the interaction between church law and civil law, and how to manage the boundaries that divide them. If we take the assumption in this sentence and build on it, then we are much more likely to see civil law as consistent with our duty as Christians rather than as an alien, opposing force.
MacLean's book focuses, of course, on the church for which she served as Depute Clerk of the General Assembly. It begins in the first two chapters with a careful definition of the concept of ‘sovereignty’, both in Scottish Reformation and in broader Christian thought. She also carefully treats the history of the Church of Scotland and its difficulties with the British government during the Ten Years' Conflict and Disruption of 1833–43. She is careful to distinguish between the English and Scottish establishments, but in a constructive way. For example, the Scots expression for King of the Scots, rex Scottorum, uses the plural possessive, meaning the king belonging to the Scots people, rather than rex Scotiae, king over the realm of Scotland. (p 17) The intellectual history of Christian sovereignty is intriguing, but the Scots gloss is both useful and unlikely to be familiar to non-Scottish lawyers or theologians, including the thought of George Buchanan, Moderator of the General Assembly of 1657 and tutor to James VI and I, and Samuel Rutherford, a non-Engager (opponent of the Stuarts), who represented the Church of Scotland in the Westminster Parliament from 1643. Most striking is the importance of popular sovereignty in Scottish Reformation-era thought and the complexity of the relationship between political and spiritual sovereignty. (pp 61–63; 78–80)
The core concern of the book is how to resolve these tensions in modern society. The essential historical fact that must be incorporated into this effort is the existence of the Church of Scotland Act 1921, which acknowledged the spiritual sovereignty of the church and its immunity from intervention by the state in matters of ‘doctrine, worship, government and discipline’. (Article IV, Articles Declaratory, Schedule to the Act) This sovereignty is essentially contested, however, because the Act also provides that it shall not ‘affect or prejudice the jurisdiction of the civil courts in relation to any matter of a civil nature’. (s 3) How are these potentially conflicting principles to be reconciled? That is the question at the heart of MacLean's book.
The questions, of course, are familiar to anyone who has observed the debates surrounding religious practice throughout the United Kingdom. Does ‘religious freedom’ require that exceptions be granted to the Church of England, so that it is not subject to a proportionality requirement in order to be exempt from equality legislation? Does it require that Roman Catholic adoption agencies be permitted to exclude same-sex couples as parents? Does it permit the formation of Islamic courts to address such matters as divorce? All of these are, of course, matters of central importance to current debates in the larger arena of how church and state should interact with one another. MacLean does not offer clear-cut answers to these questions, but she does show how a thoughtful member of the Church of Scotland might respond to them, and I would argue that her approach is a characteristically Scottish one, which aims at mutual accommodation.
Following a discussion of the well-known Percy case,Footnote 5 the European Employment Directive 2000 and the Office of the Scottish Charity Regulator, MacLean points out that the state no longer takes a laissez-faire approach in matters of religion and that there may be conflicts, even on matters of ‘ministerial discipline’, which no longer enjoys a blanket exemption from state interference. But she goes on to respond that the 1921 Act should be both a basis for insisting on respectful treatment by the civil authority and should be defended as protecting an independent spiritual jurisdiction in its own right. In another case, different from Percy, ‘the four traditional areas [doctrine, worship, government and discipline] may be under threat, and so it is important not to allow a slippage of precedents’. (p 173)
MacLean's final chapter returns to the fundamental premise with which the book began: how do Christians respond? In it she asks provocative questions about the future of the church, and she offers perceptive, realistic answers. ‘The State’ is no longer what it once was; power has devolved to Holyrood and has been ceded to the European Union. The Scottish Church no longer can claim a spiritual monopoly, and it acknowledged that it did not claim one in 1921, when the Act provided that similar provisions should be available to any other church in Scotland (s 2). She points out that the church faces irresistible external forces but goes on to point out that this disappointment may be turned into a virtue (p 197). Her proposal is revision of the Articles Declaratory (ecclesia semper reformanda est), limiting the mutual support between church and state and putting the church on more exclusively spiritual foundations than it now is. The proposal is worth discussing, and it should receive the same thoughtful, honest consideration that lies behind it.
