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Canon Law
Canon Law of Communion and Inter-Anglican Relations: the draft Anglican Covenant
In the second of a series of three articles on Canon Law, the Revd Kenyon Homfray considers the draft Anglican Covenant from a judicial point of view
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The Revd Kenyon Homfray |
As a matter of general definition in Canon Law, inter-communion and communion differ. The valid reception of the sacraments of another tradition or denomination is known as ‘inter-communion’. ‘Communion’ indicates free and full sacramental and ministerial interchange. At the heart of inter-Anglican relationships at present lies a desire by many to preserve communion in the face of differing provincial moral consciences and requirements. A proposed remedy has been suggested in the draft Anglican Covenant, now in its third draft. This article briefly considers the draft Covenant from a juridical perspective.
PREAMBLE AND DECLARATION
Irish Canon Law, as far as it deals with our relationship to the Anglican Communion - and with ecumenical relationships in general - is sparse. The Preamble and Declaration of 1870 states that the Church of Ireland will maintain communion with the "Church of England, and all other Christian Churches agreeing in the principles of this Declaration". This, of itself, suggests that this Church is in communion with those other provinces with which the Church of England is in communion, but does not, of itself, commit this Church to communion with all provinces of the Anglican Communion. In the Declaration, communion is a product of a sufficiency of doctrinal agreement. The only other indications of some legal recognition of other Churches of any denomination not in full communion with the Church of Ireland are the so-called ecumenical canons (Canons 10 and 11) and the various statements and declarations emanating from General Synod.
There is no positive requirement in the Canon Law of this Church (or, indeed, that of many other Anglican provinces) that clergy and laity actively engage in either pancommunion or, indeed, ecumenical endeavour. However, the Declaration contains a powerful moral statement of peaceful intent. This Church binds itself to "set forward, so far as it lieth, quietness, peace, and love among all Christian people". There is also the equally admirable moral statement in the Preface to the liturgical revision which gave us the Book of Common Prayer of 1878: "What is imperfect, with peace, is often better than what is otherwise more excellent, without it". Amongst its many functions, one function of Canon Law is to give expression to the moral requirements and obligations (and, indeed, the collective moral conscience) of a Church.
ROMAN LAW
Given the paucity of the canonical and legal provision of full communion, there comes a time when domestic Canon Law fails us as the Church at large evolves. In these circumstances, we must look to other legal systems and methods. There is nothing new in this. When Christianity was adopted by the Roman Empire as the official religion, Roman law was adapted and applied to and in the state Church. This law was closest to what we now call ‘civilian law’. This is the basis for continental European legal systems and international law. So, when we are faced with what appear to be intractable differences - when the moral requirements and collective moral conscience of individual provinces cannot be harmonised - it is reasonable to look further afield for a model in the hope of achieving some form of reconciliation.
Christianity has continually looked to Roman law for solutions. One of the principles behind the (first) draft Anglican Covenant of the Windsor Report is the Roman legal rule (and medieval canonical principle) quod omnes tangit: what touches all should be approved by all. This, in turn, when applied to the desire to maintain provincial autonomy, leads to the recognition that provincial autonomy operates (or should operate) within the context of, and in relationship to, the communion as a whole. Provinces are thus autonomous but interdependent.
COVENANTS – OBLIGATORY OR PROMISSORY
We are also familiar with the idea of covenant from the Old and New Testament. Scripture contains at least four identifiable covenants between God and humankind, which may be classified as either obligatory or promissory.
The obligatory form is between two unequal partners, with one able to impose sanctions on the other. Given the fears about loss of provincial autonomy that the proposed Anglican Covenant has raised in some quarters, the promissory form which was favoured by Paul (Ephesians 2: 12-15 and Galatians 3: 6-18) seems more suited to our present needs as a worldwide communion.
The promissory form has the advantage of being in the form of a social contract between equals, and neutral (rather than coercive) in nature. Though the Windsor Report and Nassau drafts were promissory in nature, the latest - the St Andrew’s draft of February 2008 - is obligatory in nature and enables a sanction to be imposed.
It appears from the documents associated with the development of the draft Covenant that there are two schools of thought as to its final form - either doctrinal or juridical - and that the two competing ‘goods’ are the preservation of provincial autonomy and maintenance of full communion.
From the juridical point of view, the problems associated with the acceptance and implementation of a Covenant draw a remarkable parallel with Kant’s Legislation Thesis, which may serve as a useful analogy or model. The Legislation Thesis (as interpreted by Andrews Reath) is based in social contract, and it does not stretch the analogy too far to regard provinces as individuals with a moral conscience within a wider community.
The Kantian dilemma is how to accommodate conflicting moral requirements, when each party seeks universal validity and acceptance of its own will. If this is to be done through a means based in law, then to be authorative and accepted, the law adopted must suggest binding reasons for and to the parties in order that they will act in a certain, desired way. The individual (or province) must receive the law as its own.
This is most readily achieved by their own adoption of the law. In other words, each party must be able to maintain a maximum degree of autonomy within constraints which are voluntarily and bindingly adopted. Reath recognizes it is impossible to frame positive laws for specific circumstances in a diverse organization (such as the Anglican Communion which has no legal bonds) which will satisfy all parties.
A universal expression of a specific will is unobtainable, and so what is needed is an expression of general will. To move on from the analogy, the general will may be expressed in a form akin to an international treaty which will express, on the one hand, both the freedom and autonomy of the individual provinces to preserve their moral requirements and conscience, and, on the other hand, their voluntary subjection to the principles of the agreement.
To accept the Covenant, we need to recognize that provinces de facto have differing moral consciences, and that moral requirements and consciences change with time. So what is needed for the agreement is a neutral form which can accommodate change - that is, the agreement should not (from the juridical point of view) contain specific moral injunctions or doctrinal requirements. Rather, it should contain the mechanism to allow for difference and change, subject to the responsibilities owed to the wider Communion. The promissory covenant form which we draw from Scripture, with its origin in suzerainty treaties, is akin to an international treaty between equal partners. The obligatory form, which seems to be the form proposed at present, is more akin to a peace treaty in which one party has the upper hand. The promissory form would appear to be the ideal.
HORIZONTAL AND VERTICAL MODEL
Another model may be drawn from constitutional law. Countries such as Ireland and Germany, with a written constitution, recognize both a vertical and horizontal legal constitutional ‘effect’. The vertical element is the relationship between the state and the individual. The horizontal element is the relationship between individuals in the state or community, competing for constitutional rights between individuals. The state will vindicate both elements in its courts. Put simply, horizontal effect deals with the balance between my right (protected by the constitution) to do this, and your right (protected by the constitution) to do that, and recognises that my individual right to do this needs occasionally to be curbed because it will interfere with your right to do that. Adjudication of the horizontal effect often requires the wisdom of Solomon.
What is sought in the Covenant is a mechanism by which the differences between individual provinces on the horizontal axis may be resolved, while staying true to the requirements of the vertical axis - that is, the provinces in communion. The Covenant and its processes will, as it were, stand at the point of intersection of the two axes - that is, at the point of contention within the community, or, in this case, the Anglican Communion. To extend the analogy, when the horizontal axis of the autonomy of an individual province (in regard to its moral conscience) is threatened by the need to maintain, or the wish to abandon, the vertical relationship of communion, some mechanism is needed if communion is to be maintained.
ANGLICAN COVENANT - THREE DRAFTS
The original draft Anglican Covenant of the Windsor Report was juridical in nature, but notably neutral in its approach. The second, the Nassau draft Covenant of April 2007, was doctrinal in character. The St Andrew’s draft is more juridical in character than the Nassau draft, and goes further in suggesting that, ultimately, the ACC might be the final adjudicator of which provinces are, or are not, in communion. As presently proposed, this will be by administrative rather than judicial process. Notably, the St Andrew’s draft Covenant and appendix protect absolutely the autonomy of all provinces. It has become apparent as the drafts have unfolded that some organization or body with limited powers has to make a decision which will express a specific will which cannot be entirely reconciled to a universal general will. In other words, in the latest - in the St Andrew’s draft - provincial autonomy is maintained at the expense of preservation of full communion. This suggests a covenant more obligatory than promissory, together with some movement away from the pure quod omnes tangit principle.
IMPERFECT WITH PEACE
This latest draft was considered by the Lambeth Conference. Then the draft may go to the provinces for further discussion. It is possible that neither the juridical nor the doctrinal form will be acceptable to all provinces, and it remains to be seen what the discussions about it planned for the Lambeth Conference will produce.
Inevitably, if provinces are to maintain a maximum degree of autonomy and full communion, compromise is necessary. A Covenant which is, perhaps, imperfect, yet with peace, has much to recommend it.
The Revd Kenyon Homfray is rector of Bunclody, Diocese of Ferns.