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Instruments of Faith and Unity in Canon Law: The Church of Nigeria Constitutional Revision of 2005

Published online by Cambridge University Press:  16 April 2008

Evan F Kuehn
Evan F Kuehn
Affiliation:
Cataloging Associate, Buswell Memorial Library, Wheaton College, Illinois
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Abstract

The Church of Nigeria's canon law revision of 14 September 2005 redefined the terms of inter-provincial Anglican unity from a focus on communion with the Archbishop of Canterbury to communion based explicitly upon the authority of scripture and historic doctrinal statements. This paper will examine the revision as an ecclesiastical reform connected to, yet independent from, the current controversy over human sexuality. Pertinent issues of episcope and ecclesial communion as they are affected by the canon law change will then be examined. Finally, the ecumenical implications of the revision will be discussed, with particular reference to the Anglican–Roman Catholic dialogue and the ‘continuing’ churches of North America.

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Articles
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Ecclesiastical Law Journal , Volume 10 , Issue 2 , May 2008 , pp. 161 - 173
Copyright
Copyright © Ecclesiastical Law Society 2008

‘From the beginning, the Archbishop of Canterbury, both in his person and his office, has been the pivotal instrument and focus of unity; and relationship to him became a touchstone of what it was to be Anglican.’Footnote 2

‘Within Anglicanism, scripture has always been recognized as the Church's supreme authority, and as such ought to be seen as a focus and means of unity.’Footnote 3

INTRODUCTION

On 14 September 2005, the Church of Nigeria revised its constitution, shifting explicit basis of ecclesial unity from the See of Canterbury to the authority of scripture and historic doctrinal statements.Footnote 4 This paper examines the structural reforms made in the revision as they relate to the Anglican ‘instruments of faith’Footnote 5 and ‘instruments of unity’.Footnote 6 While both the historic Chicago-Lambeth Quadrilateral and the more recent ‘instruments of unity’ have played a significant role in Anglican ecclesiology, the current conflict over human sexuality as it relates to ordination and ecclesial blessing has revealed a paucity of reflection upon these principles in anything but the most ideal terms and circumstances.Footnote 7 Actions of disunity have challenged the assumption that canonical bases of faith and unity mutually support each other,Footnote 8 and deeper investigation into the relationship between ‘faith’ and ‘unity’ must occur in order to find an advisable way forward. I will begin by identifying the 2005 revision as canonical reform, a neglected acknowledgment amidst the theo-political tension that has resulted from the crisis over ordination of practising homosexual persons and the blessing of same-sex unions. I will then outline the constructive nature of the revision as it relates to the Anglican episcopate and the current dialogue on communio as an issue of canon law. I will conclude by highlighting the implications of this canonical structure for inter-Anglican and ecumenical unity.

THE 2005 REVISION AS CANONICAL REFORM

The 2005 canon law change was neither significant nor unique in itself;Footnote 9 in light of the current situation of the Anglican Communion, however, the Nigerian revision has raised serious concerns about unilateral provincial action,Footnote 10 the bypassing of conventional instruments of ecclesial unityFootnote 11 and the question of impaired communion more generally.Footnote 12

The canon law revision addresses ecclesiastical questions: the terms of inter-Anglican communion and episcopal oversight of ‘like-minded faithful’Footnote 13 in ‘non-geographic’ convocation.Footnote 14 However, its impetus in the crisis of communion over issues of human sexuality has indelibly marked its reception. The Church of Nigeria's call to discipline ECUSA (now TEC),Footnote 15 its declaration of broken tiesFootnote 16 and its eventual declaration with 12 other provinces that ECUSA ‘has separated itself from the remainder of the Anglican Communion and the wider Christian family’Footnote 17 have all tended to substantiate interpretations of the constitutional revision as yet another response to the actions of ECUSA, rather than as a reform of ecclesiastical structures. Amidst this atmosphere, it is difficult to view the canonical revision without recourse to its wider theological context. There is, however, a distinction between the purposes of canon law and theology,Footnote 18 and this division of labour allows for an assessment of canonical structures that is connected to, yet independent from theological consideration. Archbishop Akinola stated in a press conference on the revision, ‘in Onitsha we took a number of actions to clarify our commitment to the apostolic faith. One of the things we did to strengthen this position was to amend our constitution.’Footnote 19 Only by considering the constitutional amendment as a structural revision may we be able to assess its relevance for a theological ‘commitment to the apostolic faith’ as it has been expressed through ecclesial actions.

Canonical revision is appropriate and expected in accordance with the edification of the body of Christ. ‘[I]nstructive criticism and suggestion are normal tasks of the science of canon law,’Footnote 20 and in themselves represent a renewal of polity rather than a reversion into politics. Theology and theological conflict does inform canon law, though canon law does not lose its juridical mandate because of its theological source:

The scientific study of the Church's reality in all its aspects is the function of the exegete, the patrologist, the historian, the theologian, the moralist, the liturgist, the sociologist, the missiologist, etc. The canonist is concerned only with the various ways in which this reality can be given a certain order by means of authorized regulations.Footnote 21

In 2003, Archbishop Akinola commissioned, with Archbishops Gomez and Venables, a study of recent actions taken by ECUSA, intending to demonstrate ‘the case against the Episcopal Church (USA)’. Examination of subsequent canonical actions of the Church of Nigeria should refer back to this and other earlier statements, which laid the foundation for later canonical action. Legal precedent supporting Lambeth Conference 1998 resolution I.10 is cited in Claiming our Anglican Identity, including ‘English Canon Law and Common Law since the Middle ages’ and under Elizabeth I, ‘[s]ubsequent local, provincial, and national British synods and councils’ and ‘numerous non-British and international Anglican synods’; specifically mentioned among these are ‘ECUSA's House of Bishops in 1977’ and ‘[t]he 66th General Convention [ECUSA] in 1979’. It is also noted that neither of these final two interpretations had been repealed by ECUSA.Footnote 22 Ecclesial and pastoral procedure concerning the ordination of practising homosexual persons and the blessing of same-sex unions is therefore established as a matter of authoritative resolution,Footnote 23 and noncompliance with these statements introduces an ecclesial conflict requiring discipline based upon established theological standards rather than ecclesial diversity resulting from theological adiaphora.Footnote 24 In fact, there is no canonically recognised ‘diversity’ on the matter, as the report seeks to emphasise that ECUSA's regulatory instrumentsFootnote 25 were themselves ignored in the consecration of Gene Robinson and in the exploration of rites of ecclesial blessing for homosexual persons.Footnote 26

The 2005 revision concerning the terms of inter-Anglican communion, however, has nothing directly to do with the Church of Nigeria's status of impaired communion with TEC. What has changed is the focus of the multipartite form of canonical communion,Footnote 27 which has in all other aspects been preserved. While the Church of Nigeria previously established communion based upon the communal focus of the See of Canterbury, the revision has established the focus of the still multipartite communion as ‘the Historic Faith, Doctrine, Sacrament and Discipline of the one Holy, Catholic, and Apostolic Church’,Footnote 28 properly given in the scriptures and received in historic statements of the Church. Based upon previous statements made by Archbishop Akinola, this should be understood to encompass previous condemnations of TEC; however, the canon law revision itself seeks to reform provincial ecclesiological structures of relation to the See of Canterbury.Footnote 29

THE CONSTRUCTIVE NATURE OF THE 2005 REVISION

Canon law and Anglican episcope

The 2005 canon law revision followed the 2004 impairment of communion, a disciplinary instrumentFootnote 30 directed towards those provinces that had disregarded canonical statements wherein standards of faith had been defined for the Communion.Footnote 31 The revision was not a disciplinary action itself; rather it sought to reform canonical structures in response to the current crisis. In 2006, the Council of Anglican Provinces in Africa (CAPA) released The Road to Lambeth, presenting the dilemma affecting Anglican instruments of both faith and unity:

The current situation is a twofold crisis for the Anglican Communion: a crisis of doctrine and a crisis of leadership, in which the failure of the ‘Instruments’ of the Communion to exercise discipline has called into question the viability of the Anglican Communion as a united Christian body under a common foundation of faith, as is supposed by the Chicago-Lambeth Quadrilateral.Footnote 32

This statement presents the relationship of these instruments such that the instruments of faith ‘suppose’ the instruments of unity, and the instruments of unity have a responsibility to exercise appropriate disciplineFootnote 33 in order to safeguard the more foundational instruments of faith.Footnote 34 While all authoritative Anglican bodies are held to account in this report (including the African bishops themselves), a certain focus is directed towards the Archbishop of Canterbury: ‘So far as we can see, the Archbishop of Canterbury as Primate of All England has failed to oppose this compromising position [the Civil Partnership Act 2004] and hence cannot speak clearly to and for the whole Communion.’Footnote 35 This duty of speaking ‘to and for the whole Communion’ is consonant with the Windsor Report, paragraph 109, but beyond this the bishops of CAPA clarify that standards of faith and order have been established within global authoritative statements as well as provincial canon law and must be the source from which the Archbishop of Canterbury speaks ‘to and for the whole Communion’, especially in cases of dispute.Footnote 36 These canonical standards are the same ones as those cited in response to ECUSA; CAPA simply insists that the Archbishop of Canterbury be mindful of the disciplinary function to which the entire episcopate is called, and the See of Canterbury all the more so because of its role as the focus of unity.Footnote 37 This duty is understood to fall within the confines of ‘moral authority’ and so may result in measures of discipline appropriate to episcopal authority.Footnote 38

The Church of England's response of 25 July 2005Footnote 39 to the Civil Partnership ActFootnote 40 appears to have factored heavily in the Archbishop of Nigeria's explanation of the September 2005 canon law revision concerning the See of Canterbury. Archbishop Akinola personally stated in a letter of August 2005, ‘While I have great affection and respect for the historic role that the Church of England has played in all of our lives, no church can ignore the teaching of the Bible with impunity and no church is beyond discipline.’Footnote 41 Adherence to biblical teaching may be read as shorthand for the ‘instruments of faith’; the ‘historic role’ of the Church of England is more particularly the role of its primate as ‘instrument’ and indeed ‘focus’ of unity.Footnote 42 Yet the Church of Nigeria did not seek to abandon one for the other; indeed, one of the ‘instruments of faith’ is itself a ‘principle of unity’.Footnote 43 Rather, disunity was perceived already in the body of Christ, and a canonical response was deemed necessary to re-establish unity. The canon law revision of 2005 located this unity foundationally in scripture, but did not thus exclude the episcopate insofar as the bishop is implied by reference to ‘Anglican Churches[,] Dioceses and Provinces’.Footnote 44 What has changed is a re-emphasis on the necessary ‘evangelicity of the episcopate’. This principle was already present in the Chicago-Lambeth Quadrilateral but has been established more recently in ecumenical discussion between ECUSA and the Evangelical Lutheran Church in America.Footnote 45 Evangelical unity buttresses the episcopate as a sign of the apostolic continuity of ecclesial unity:

The significance of the episcopate as a mark of apostolic continuity with the gospel … is not given antecedently and then visibly manifested in the church; the sign is also reconstructed over and over again by its concrete service to the gospel (which is its evangelical character). The episcopate as a sign receives its significance from the historical dimension of its apostolic succession, yet also from the authenticity of its contemporary acts of service and proclamation.Footnote 46

Having established the proclamation of the gospel as essential to the episcopal claim to apostolic unity, as well as the Church of Nigeria's identification of and response to episcopal disunity in its canon law revision, I will examine the constructive nature of this revision as it relates to ecclesiological communion.

Canon law and Anglican communion

Communio ecclesiology has held distinct canonical significance in Roman Catholicism since the publication of Lumen Gentium.Footnote 47 In Roman Catholicism, a balance tends to be sought between communio and societas Footnote 48 or concilium Footnote 49 ecclesiology, while in Anglicanism balance exists with ecclesial ‘autonomy’.Footnote 50 In all cases, the tension is understood to be constructive. Communio, however, relativises any ecclesiological atomism by its call to evangelical unity: ‘The essence of the principle of communio consists in the fact of postulating the total immanence, and the inseparability, of all the elements that make up the Church.’Footnote 51 Diversity is not simply autonomy, rather, ‘[d]iversity is seen here as constitutive of unity and not a hindrance to it’.Footnote 52 The basis of unity, again, ‘involves sharing the same faith, partaking the same sacraments, and loyalty and obedience to the bishops’.Footnote 53 In Anglicanism these bases are reflected in the instruments of faith, which, through mention of the historic (and necessarily evangelical) episcopate, form the basis of the focus and instruments of unity.

The global order of a communion is not juridical, but rather a moral order.Footnote 54 The moral interdependence of Anglican provinces has been described in terms of ‘bonds of affection’ or ‘an implicit understanding of belonging together’.Footnote 55 Unfortunately, the moral order of communion is often contrasted to provincial juridical structures in a way that renders it impotent. The moral order displays, ‘a high level of generality’ and is ‘not binding’ and ‘unenforceable’.Footnote 56 It is probably because of this perceived deficiency that a more coherent global structure of faith and order is being pursued, the two most prominent proposals of which are an Anglican ius commune Footnote 57 and covenant.Footnote 58

Proposals for a global canonical order are understood to codify pre-existing provincial canons, or inter-provincial conventions. This being the case, however, the question is begged whether current communal structures are, in fact, inadequately suited to fulfil the needs of Anglican communion. Numerous difficulties arise when the ‘bonds’ of affection are described as ‘non-binding’, even if only a lack of legal obligation is intended, because this observation undercuts the non-legal foundation upon which communion is structured. While the instruments of unity are at most ‘quasi-legal’,Footnote 59 communion ecclesiology has always retained this form and claimed its authority nonetheless.Footnote 60 The non-legal character of ecclesial communion does not disallow authoritative reading of, and disciplinary action based upon, holy scripture:

The existence of Communion is precisely what provides for the possibility of a genuine reading of Scripture in unified diversity. The notion of mutually contradictory readings of Scripture as requiring equal respect and coexisting integrity derives from a lack of a comprehension of and respect for Christian communion itself …, through which the Holy Spirit works and leads.Footnote 61

When such contradictory readings occur, communal authorities have an obligation to discipline erring members.Footnote 62 While the Archbishop of Canterbury has recognised that repudiation of the interpretation provided by LC 1998 resolution I.10 would constitute a threat to Anglican communion,Footnote 63 disciplinary action has not been forthcoming from the instruments of unity out of respect for provincial autonomyFootnote 64 and perceived limits of jurisdiction in the global moral order.Footnote 65 As a result, the Church of Nigeria has exercised its own autonomyFootnote 66 towards the goal of communal unity,Footnote 67 and has done so by means of canon law.

IMPLICATIONS OF THE 2005 REVISION

I will conclude by discussing the implications of the 2005 revision for ecumenical and inter-Anglican unity. These considerations are central to informed amendment of canonical structures because of the ecumenical character of ecclesiological bases of Anglican canon law.Footnote 68 A communion in dialogue with others must consider not only its own legal structure, but also those of other Christian communions.Footnote 69

Canon law and ecumenical unity

The current Anglican crisis over issues of sexuality has been as detrimental to ecumenical relationships as it has to bonds of unity within the Communion itself. In its 2003 meeting, the Inter Anglican Standing Commission on Ecumenical Relations recognised the damage done to ecumenical dialogue, noting in particular ‘impairment of the work’ with the Roman Catholic (IARCCUM) and Oriental Orthodox commissions, as well as the Russian Orthodox Church's severing of ties with ECUSA.Footnote 70

Consultation with the Roman Catholic Church has in particular provided valuable insight into the development of the current Anglican crisis and how it has affected the canonical structures of communion. In July 2004, the IARCCUM ad hoc sub-commission submitted its reflections to Archbishop Rowan Williams and Cardinal Walter Kasper. The report commented on the effects of Anglican provincial disregard for global authoritative statements:

The fact that the New Hampshire Consecration took place in opposition to Resolution 1.10 passed by the bishops at the Lambeth Conference, to Resolution 34 of ACC 12, to the statement of the Primates' Meeting in October 2003, and to a public statement of the Archbishop of Canterbury, would seem to call into question the processes of discernment in communion, and in particular the place of the episcopate and the ministry of primacy in their respective responsibilities for the maintenance of unity in the Anglican Communion. When individual dioceses and provinces act autonomously against the recommendations of the Communion's instruments of unity, at what cost is this done?Footnote 71

The heart of the report's critique is a failure of the ‘processes of discernment in communion’, which should safeguard the continually emphasised ‘basic moral values’ necessary for ecclesial communion.Footnote 72 Rejection of these ‘basic moral values’ has put in question both the state of the Anglican Communion and the Anglican–Roman Catholic dialogue. Towards the end of this document, the possibility is left open for further dialogue if Anglican structures of communion are mended appropriately:

If you choose to strengthen the authority structures and instruments of unity within the Anglican Communion and find an effective means of addressing the tendency towards divergence on matters of faith and doctrine, we would clearly see this as enhancing the possibility of meaningful and fruitful dialogue in the search for Christian unity, and of an increasing commitment to shared witness and mission.Footnote 73

These critiques were revisited in December 2004, in Cardinal Walter Kasper's invited letter to Archbishop Rowan Williams giving his thoughts on The Windsor Report. Kasper raised two concerns: the lack of a clearer articulation of ‘the importance of being in communion with the faith of the Church through the ages’ and ‘the moral questions at the heart of the current controversy’.Footnote 74 The inadequacy of The Windsor Report in considering both of these issues was presented as an obstacle to ecumenical unity, although the report as a whole was recognised as helpful and in line with previous work of the ARCIC.Footnote 75

The concerns of ecumenical partners have been expressed by the Church of Nigeria as well, and the resulting canon law revision was intended to be a provisional answer to the failure of communal structures of moral order. The similar tone of response of the Church of Nigeria and other Christian communions to Anglican disunity suggests that subsequent canonical actions of the Church of Nigeria may contribute to the satisfaction of ecumenical concerns. The canon law revision is both consciously provisional as an Anglican structure and convergent with the ecclesiastical status of other Christian bodies.Footnote 76

Canon law and inter-anglican unity

The Lambeth Conference of 1998 stated its commitment to dialogue and reconciliation with ‘continuing Anglican churches’ that have broken away from the Anglican Communion while acknowledging an association with historic Anglicanism.Footnote 77 Unfortunately, the current crisis over sexuality has not only hindered this process of reunion; it has, in fact, instigated a larger exodus of parishes and dioceses out of the Anglican Communion.Footnote 78 These continuing churches are committed to the historic moral standards outlined by the instruments of faith, and, in principle, to the instruments of unity,Footnote 79 properly exercised.

The Church of Nigeria has been able to pursue the goals of LC 1998 resolution IV.11 more effectively than TEC or other provinces of the Anglican Communion, largely because of its canonical efforts to maintain ecclesiastical balance between the instruments of faith and unity. While the Anglican Province of America (APA) and the Reformed Episcopal Church (REC) entered into recognised dialogue with ECUSA in 2003,Footnote 80 these efforts were ‘mutually suspended’ due to ‘the present instability in the Anglican Communion.’Footnote 81 The Church of Nigeria, on the other hand, has entered into a Covenant of Union of Anglican Churches in Concordat with the APA and REC, drafted in December 2004 and approved on 12 November 2005. The Covenant of Union demonstrates one aspect of the effects of the 2005 canonical revision upon inter-Anglican communal structure. The level of communion intended by this document is explained: ‘“covenant union,” is used to convey a stronger relationship than simply the typical intercommunion kind of document’.Footnote 82 Documents of unity and intercommunion among other ‘continuing’ Anglican churchesFootnote 83 suggest that the extent of the 2005 Covenant of Union may anticipate further acts of reunion among Anglican churches that are presently not in communion with the See of Canterbury. The condition of inter-Anglican communion based fundamentally upon adherence to the instruments of faith is consistently emphasised by the continuing Anglican churches, and reflected in the Nigerian canon law revision of 2005.

CONCLUSION

While the 2005 canon law revision of the Church of Nigeria has remained controversial as a response to current structures of Anglican unity, it should be recognised as a legitimate revision of ecclesiastical law. The new canonical formulation affects the terms of inter-Anglican and ecumenical unity primarily by its structuring of the ‘instruments of faith’ as a fundamental principle of unity rather than the Anglican episcopate as represented in the See of Canterbury. The revision has acted both as a response to the current ecclesiastical crisis in the Anglican Communion and as an instrument of future Anglican and ecumenical unity.

References

1 A version of this paper was presented for the Ecclesiological Investigations Group at the 2007 American Academy of Religion annual meeting in San Diego, CA, under the title: ‘Foundations of unity in canon law: the Church of Nigeria and the Anglican Communion’, on 19 November 2007.

2 Lambeth Commission on Communion, The Windsor Report 2004 (London, 2004), para 99.

3 Windsor Report, para 53.

4 I will examine only the revision of Chapter 1. See <http://www.anglican-nig.org/Onitsha2005_pressls2.htm>, accessed 2 December 2007. Constitution of the Church of Nigeria, 1(3): ‘(1) The Church of Nigeria (Anglican Communion) … shall be in full communion with all Anglican Churches[,] Dioceses and Provinces that hold and maintain the Historic Faith, Doctrine, Sacrament and Discipline of the one Holy, Catholic, and Apostolic Church as the Lord has commanded in His holy word and as the same are received as taught in the Book of Common Prayer and the ordinal of 1662 and in the Thirty-Nine Articles of Religion.

‘(2) In the interpretation of the aforementioned formularies and in all questions of Faith, Doctrine and Discipline, the decisions of the Ecclesiastical tribunals of the Church of Nigeria shall be final.’

5 See N Doe, ‘Communion and autonomy in Anglicanism: nature and maintenance’, pp 15–16, available at <http://www.anglicancommunion.org/commission/process/lc_commission/docs/autonomy.pdf>, accessed 2 December 2007. Identifying the constituent elements of the Chicago-Lambeth Quadrilateral as ‘instruments of faith’ helpfully allows juxtaposition with the ‘instruments of unity’.

6 Represented in particular by the See of Canterbury as the episcopal focus of Anglican unity. See J Rees, ‘The Anglican Communion: does it exist?’, (1998) 5 Ecc LJ 15, and J Paterson, ‘Structural changes in the Anglican Communion’, (2006) 4 Journal of Anglican Studies 254.

7 Windsor Report, para 97.

8 Windsor Report, para 123.

9 ‘On a canonical level, the laws of most churches make no explicit reference, in their provisions on self-identity, to the See of Canterbury.’ Australia, Japan and Melanesia are mentioned in particular. (Doe, ‘Communion and autonomy in Anglicanism’, p 8.)

10 Windsor Report, para 29(1).

11 ‘Acceptance of an individual Province's view of orthodoxy becomes the basis for relationship. Further, the revision of its Constitution states that in all questions of interpretation of faith and doctrine the decision of the Church of Nigeria shall be final.

‘As a Primate of the Anglican Communion I find the implications of this revision most serious. Am I alone in interpreting such wording as the removal of established bonds of communion and their replacement by a Provincial-only wide authority which will set its own criteria for whoever or whatever it considers worthy of a communion relationship?’ In ‘Where now for world Anglicanism?’, lecture delivered by R Eames, 12 October 2005, Berkeley Divinity School at Yale. Anglican Communion News Service (ACNS) 4048, 14 October 2005.

12 ‘[W]hat does such a rupture of relationships mean to other Provinces if broken communion refers to the See of Canterbury? The commutations for ecclesiology in such instances are immense. They underline again that “bonds of affection” based on fraternal gestures alone were never geared to meet the challenge of division.’ In ‘The Anglican Communion: a growing reality’, lecture delivered by R Eames, 4 October 2005, Virginia Theological Seminary. ACNS 4041, 5 October 2005.

13 Constitution of the Church of Nigeria, Chapter 9(39)(c).

14 Ibid, Chapter 16(75)(8).

15 Claiming our Anglican Identity: the case against the Episcopal Church, USA (Colorado Springs, CO, 2003), IV(a). ECUSA will be used to refer to the Episcopal Church in the United States of America when discussing events preceding its name change to The Episcopal Church (TEC).

16 ACNS 3703, 9 December 2003.

17 ACNS 3773, 9 February 2004.

18 See T Urresti, ‘Canon law and theology: two different sciences’ in N Edelby, T Urresti and P Huizing (eds), Concilium: renewal and reform of canon law (New York, NY, 1967), pp 17–26.

19 <http://www.anglican-nig.org/primate's_pressbrief.htm>, accessed 2 December 2007.

20 P Huizing, ‘The reform of canon law’ in T Urresti and N Edelby (eds), Concilium: pastoral reform in church government (New York, NY, 1965), p 118.

21 Ibid, p 120.

22 Claiming our Anglican Identity, II(3).

23 Lambeth resolutions and the ecclesiastical law of other provinces do not technically constitute a canonical law that is in any way legally binding upon a province; however, they certainly take on a canonical form based upon moral authority, which, in the context of ecclesial communion, is a real authority. For further description, see N Doe, Canon Law in the Anglican Communion (Oxford, 1998), pp 339–340 and J Rees, ‘Primates Meeting, October 2003: some legal and constitutional considerations’, ss 2(1), 3(1), 3(3), available at <http://www.anglicancommunion.org/commission/process/lc_commission/docs/200310johnrees.pdf>, accessed 2 December 2007.

24 It should be noted that, while The Windsor Report seems to interpret the ‘listening process’ as a call to re-examine these canonical structures (paras 135, 146), the exclusive focus of the Lambeth resolutions detailing the ‘listening process’ (1978 res 10(3), 1988 res 64, 1998 res I.10(c)) has consistently been upon the ‘pastoral care’ and ‘moral direction’ of homosexual persons rather than a re-examination of ecclesiastical law or other statements concerning homosexuality as a theological question. Listening toward this end is requested in accordance with authoritative statements on homosexuality.

25 N Doe, ‘Canon law and communion’, (2002) 6 Ecc LJ 247: ‘in ECUSA … episcopal policy … allows ordination of practising homosexuals.’ While Stanton (Bishop of Dallas) v Righter (1996) may be appropriate precedent for Doe's statement, ECUSA (now TEC), Canon III(4)(1) says nothing about homosexual practice but rather orientation. It should also be noted that ‘episcopal policy’, as established in Stanton v Righter, stands in acknowledged disagreement with the recommendation of resolution 1979-A053 of the 66th General Convention: ‘we believe it is not appropriate for this Church to ordain a practicing homosexual’. This act of repudiation is often unjustifiably overshadowed by focus upon the non-legal nature of General Convention recommendations. See the following section for a discussion of the limits of scriptural interpretation within ecclesial communion and the authority of non-legal ecclesial structures in setting these limits.

26 Claiming our Anglican Identity, II(6)–(7).

27 Doe, ‘Communion and autonomy in Anglicanism’, pp 8–9.

28 Constitution of the Church of Nigeria, Chapter 1(3). R Eames misinterprets the revision by failing to acknowledge its canonically multipartite and indeed catholic aspects (see n 11 above).

29 Doe, ‘Communion and autonomy in Anglicanism’, p 22: ‘If, as is the case for very many churches, the relationship of full communion is embodied in the law of the church, then it might be that alteration of that relationship must be effected by altering the law, in accordance with procedures necessary for amendment.’

30 ‘After the Robinson election, many provinces chose the only instrument of discipline available: declaration of impaired or broken Communion.’ (The Road to Lambeth, available at <http://www.globalsouthanglican.org/index.php/comments/the_road_to_lambeth_presented_at_capa/>, accessed 2 December 2007.)

31 ‘The importance of [LC 1998, res I.10] cannot be overstated. By using the phrase “contrary to Scripture,” the bishops indicated that homosexual practice violates the first principle of the Communion's Quadrilateral and indeed the fundamental basis of Anglican Christianity (as expressed in [the Thirty-nine Articles of Religion,] Articles VI and XX). They were saying: “Here is an issue on which we cannot compromise without losing our identity as a Christian body.”’(The Road to Lambeth.)

32 Ibid.

33 LC 1867, res 8: ‘[Provincial changes in faith and order are] liable to revision by any synod of the Anglican Communion in which the said province shall be represented.’

34 ‘A church becomes a member of the Anglican Communion when it displays loyalty to the instruments of faith, and a practical expression of membership is participation by a church in the work of the institutional instruments of the Anglican Communion.’ N Doe, ‘Canon law and communion’, p 245.

35 The Road to Lambeth.

36 For an extended discussion of the relationship between communion ecclesiology and the accountability of the episcopate to the faithful, see R Kaslyn, ‘Accountability of diocesan bishops: a significant aspect of ecclesial communion’, (2007) 67 The Jurist, pp 109–152.

37 LC 1930, res 49; LC 1998, res III.6(e). D Hamid notes that ‘[t]he right to speak on behalf of Anglicanism is not necessarily a charism inherent simply in being the incumbent of the See of Canterbury.’ (See D Hamid, ‘Church, communion of churches and the Anglican Communion’, (2002) 6 Ecc LJ 365.) While this is true, the See of Canterbury does hold a moral authority within the Anglican Communion.

38 ‘The apostle Paul never invoked law for his churches (indeed there was no canon law at that time), but he nevertheless exhorted them to be of one mind with him and to conform their lives to apostolic tradition (II Thessalonians 2.15)’: 15 November 2005, letter from the Global South Primates to Archbishop Rowan Williams, available at <http://www.globalsouthanglican.org/index.php/article/global_south_primates_response_to_archbishop_rowan_williams/>, accessed 2 December 2007. Reference to the apostleship of Paul as it relates to the moral authority of the episcopate, and particularly the See of Canterbury, is also made in Windsor Report, para 65.

39 See <http://www.cofe.anglican.org/news/pr5605.html>, accessed 2 December 2007.

40 See <http://www.parliament.the-stationery-office.co.uk/pa/ld200304/ldbills/053/2004053.htm>, accessed 2 December 2007.

41 ACNS 4017, 8 August 2005. The role of the Archbishop of Canterbury as the focus of Anglican unity is not mentioned in this letter, although he is singled out elsewhere, as in the above reference to The Road to Lambeth.

42 Hamid, ‘Church, communion of churches and the Anglican Communion’, p 363: ‘[the Archbishop of Canterbury] has a primacy within England itself and by extension throughout the Anglican Communion’.

43 That is, the historic episcopate. See J Britton, ‘The evangelicity of the episcopate’, (2003) 85 Anglican Theological Review 610.

44 Constitution of the Church of Nigeria, Chapter 1(3).

45 Called to Common Mission, para 12; the text is available at <http://www.elca.org/ecumenical/fullcommunion/episcopal/ccmresources/text.html>, accessed 17 January 2008.

46 Britton, ‘The evangelicity of the episcopate’, p 616.

47 R Kaslyn, ‘Communio with the Church’ and the Code of Canon Law (Lewiston, NY, 1994), pp 13–22. The centrality of communion ecclesiology to post-conciliar thought may be more accurately traced to the Extraordinary Synod of 1985, which synthesised the message of Lumen Gentium in terms of ‘communion’. However, the publication of the International Catholic Review demonstrates that the concept of communio was present earlier.

48 E Corecco, ‘Ecclesiological bases of the code’ in J Provost and K Wulf (eds), Concilium: canon law–church reality (Edinburgh, 1986), pp 3–13.

49 While the concilium and communio groups represent two more robust post-conciliar ecclesiologies, their differences should not be seen as insurmountable. For a description of communio with brief reference to concilium, see J Ratzinger, ‘Communio: a project’, (1992) 19 Communio: International Catholic Review, pp 436–449.

50 See LC 1930, res 48 and Doe, ‘Communion and autonomy in Anglicanism’.

51 Corecco, ‘Ecclesiological bases of the code’, p 7, emphasis in original. See also Lumen Gentium 3(23): ‘in and from these particular churches there exists the one unique catholic church’, in N Tanner (ed), Decrees of the Ecumenical Councils (Washington, DC, 1990), p 867. The passage from Lumen Gentium is noted in Kaslyn, ‘Communio with the Church’, p 23.

52 Kaslyn, ‘Communio with the Church’, p 23.

53 J Renken, ‘“Duc in Altum!” Communio: source and summit of church law’, (2003) 63 The Jurist 55.

54 See Doe, ‘Canon law and communion’, pp 243–246.

55 The Virginia Report (London, 1997), Chapter 3(28), available at <http://www.lambethconference.org/1998/documents/report-1.pdf>, accessed 17 January 2008.

56 Doe, ‘Canon law and communion’, p 246.

57 Windsor Report, para 113. See also N Doe, ‘The common law of the Anglican Communion’, (2005) 7 Ecc LJ pp 4–16, reproduced in (2005) 5 International Journal for the Study of the Christian Church, pp 242–255 and N Doe, ‘The contribution of common principles of canon law to ecclesial communion in Anglicanism’, (2008) 10 Ecc LJ, pp 71–91.

58 Windsor Report, paras 118–120. See also ‘An Anglican covenant: a draft for discussion’, available at <http://www.anglicancommunion.org/commission/covenant/report/draft_text.cfm>, accessed 2 December 2007.

59 See N Doe, ‘Ecclesiastical quasi-legislation’ in N Doe, M Hill and R Ombres (eds), English Canon Law (Cardiff, 1998), pp 93–103 and Doe, Canon Law in the Anglican Communion, pp 339–340.

60 The distinction between ‘covenantal’ and ‘contractual’ relations helpfully parallels the ‘moral’ and ‘juridical’ order of Anglican communion. ‘Covenantal systems rest on the creation of a compliance structure such that reflection by the participants will produce the conclusion that noncompliance to expectations constitutes a breakdown in their own moral essences.’ (D Bromley and B Busching, ‘Understanding the structure of contractual and covenantal social relations: implications for the sociology of religion’, (1988) 49 Sociological Analysis 22S.)

61 Claiming our Anglican Identity, II(2). See also Windsor Report, para 86.

62 Disciplinary protocol is much more established within Anglican provinces than on a global scale; nonetheless, something like ‘admonition’ or ‘rebuke’ may be found in Windsor Report, para 144. For descriptions of these terms, see Doe, Canon Law in the Anglican Communion, pp 88–89. The Archbishop of Canterbury may also exercise a sort of discipline through his responsibility to invite provincial representatives to global Anglican meetings and to recognise provinces as ‘in communion’. Archbishop Rowan Williams' apparent decision not to invite Bishops Martyn Minns, Robinson Cavalcanti, Chuck Murphy, John Rodgers, Alexander Green, Thaddeus Barnum, TJ Johnson, Douglas Weiss and Gene Robinson to the 2008 Lambeth Conference may or may not be interpreted as an exercise of this disciplinary authority.

63 ‘I accept that any individual diocese or even province that officially overturns or repudiates this resolution poses a substantial problem for the sacramental unity of the Communion.’ Archbishop Rowan Williams, Letter to the Primates, 23 July 2002, quoted from Windsor Report, para 25, n 9.

64 The Anglican Communion Primates' Meeting Communiqué, February 2005, para 13. ACNS 3948, 24 February 2005.

65 Doe, Canon Law in the Anglican Communion, p 339: ‘There is no formal Anglican canon law globally applicable to and binding upon member churches of the Communion. No central institution exists with competence to create such a body of law.’

66 Constitution of the Church of Nigeria, Chapter 1(3)(2).

67 Press briefing by Archbishop Akinola, 29 September 2005: ‘Our earnest desire is to see the fabric of our beloved Anglican Communion restored and our bonds of affection renewed through our common commitment to God's Word written as expressed in Article XX of our common Articles of Religion.’ Available at <http://www.anglican-nig.org/primate's_pressbrief.htm>, accessed 2 December 2007.

68 Doe, Canon Law in the Anglican Communion, pp 354–355.

69 See R Ombres, ‘Ecclesiology, ecumenism and canon law’ in Doe, Hill and Ombres (eds), English Canon Law, pp 48–59.

70 IASCER 2003 res 1.03. The terms of the Russian Orthodox Church's declaration are quoted as ‘wanting to maintain contacts and co-operation with the members of the Episcopal Church in the USA who clearly declared their loyalty to the moral teaching of the Holy Gospel and the Ancient Undivided Church’. This provision has also been clearly laid out by various provinces of the Anglican Communion who have otherwise declared impaired communion with TEC.

71 Ecclesiological Reflections on the Current Situation in the Anglican Communion in the light of ARCIC (ERCSAC), para 35, emphasis added, available at <http://www.aco.org/ministry/ecumenical/dialogues/catholic/iarccum/docs/pdf/iarccum2004.pdf>, accessed 17 January 2008.

72 ERCSAC, paras 25, 38 and 41.

73 ERCSAC, para 48.

74 See <http://www.vatican.va/roman_curia/pontifical_councils/chrstuni/card-kasper-docs/rc_pc_chrstuni_doc_20041217_kasper-arch-canterbury_en.html>, accessed 2 December 2007.

75 ‘The text stands in line with our ARCIC documents, though there are other elements of ARCIC's work which we believe deserve further attention.’ (Ibid.)

76 See Ombres, ‘Ecclesiology, ecumenism and canon law’, pp 48–59.

77 LC 1998 res IV.11.

78 The Church of Nigeria is involved in reconciliation with these groups as well, through its controversial oversight of the Convocation of Anglicans in North America (CANA). While discussion of this involvement is important, the issue of actual primatial oversight is beyond the scope of this paper, as it requires consideration of the revisions to chapters 9 and 16 of the Constitution of the Church of Nigeria.

79 A bewildering array of communions, usually with established constitutions, makes it difficult to give exhaustive citation of this claim. Continuing Anglican churches are, however, generally characterised by a stated commitment to the Lambeth Quadrilateral and to the apostolic episcopate. For further information, see <http://www.anglicansonline.org/communion/nic.html>, accessed 2 December 2007.

80 General Convention Resolutions 2003-B006, 2000-D047.

81 Action on Resolutions Referred by the 74th General Convention, 2003-B006, available at <http://episcopalarchives.org/e-archives/bluebook/15.html>, accessed 2 December 2007.

82 17 November 2005, letter from the Rev R Sutton, Chairman of the Interchurch Relations Committee, REC, available at <http://www.anglicanprovince.org/suttonletter.html>, accessed 2 December 2007.

83 One example is the Articles of Ecclesiastical Fellowship of the Bartonville Agreement of 1999. Constituent members of the agreement were: ‘the American Anglican Church, the Anglican Church in America (with its sister Churches and Provinces in the Traditional Anglican Communion), the Anglican Province of America, the Anglican Rite Synod in the Americas, the Episcopal Missionary Church, and The Orthodox Anglican Church.’ (See <http://anglicanprovince.org/ccef.html>, accessed 20 May 2007.)