Covenant and canon law

The origins of Anglican canon law

A view of what's happening very different to that of the Editor of the Church of Ireland Gazette is presented by Kevin Donlon.

Kevin Francis Donlon is a corresponding member of the Global South Anglican Theological Formation and Education Task Force and his paper The Challenges of Covenant and Canons for the Future of a Ius Commune Anglicanae can befound on the Global South site.

Note: his paper, which does not seem to be dated, does not address any of the Covenant proposals later than Towards an Anglican Covenant, though the principles he discusses remain key.

He presumes that the Communion is in the process of reformation of a very Anglican kind (i.e. decently and in order) . It is turning into a comunnio ecclessiae sui iuris - one single church with one law.

The central problem, from this perspective, is the old order: a global communion where law-making is in the hands of 44 separate bodies. A body which covenants together and yet makes laws independently has insufficient coherence when amity is not enough.

The guiding principle has been “In essentials unity, In doubtful things liberty, But in all things love”. Unity under this principle has been expressed in common worship and in local customs which may be universalisable but may not. Clashes occur in church order where local action may conflict with global affiliations.

However

The possibility of a universal approach to canons has not been received well in Anglicanism and has been placed in deference to the idea of covenants. It seem the reasons are many, but the most visceral is because of past fears that an uncompromising devotion to canonical structure will damage the Spirit’s guidance to new models of anglicanae ecclessiae. Conversely, there is a posture holding that the present crisis of “anglicanae communio” lies in the fact that Anglicanism has consistently failed to embrace a clear set of universal norms and as such this has paralyzed its ability to witness to the truth of the gospel. The resolution of the tension between canons and covenants amidst such conflicts is “essentially contested and undecidable, particularly if the consensus fidelium is important in the determination”. (Stephen Pickard. , Innovation and Undecidability: Some Implications for the Koinonia of the Anglican Church. Journal of Anglican Studies, Volume 2.2, December 2004. pg.93)

He argues for a strengthening of the Covenant by grounding it in Divine Law and the long history of canon law making (both of which, in practice have been sustained by the Roman catholic church, not Anglicanism).

He would also draw on Orthodox law making which tends to be responsive rather than prescriptive, recognising and valuing local jurisdictions. In particular he suggests three levels of law: of the church universal, of the Anglican Church as a whole, and particular local laws.

This programme of codification of Anglican law, and its application across the Communion, would call for a new ecclesiology.

Ecclesiastically in terms of governance this has implications for the Principles of Subsidiarity and the orthodox Concept of Economy. As expressed in the Virginia Report, the call is for authority not to be concentrated in a single center but rather across a plurality of persons exercising various degrees of authority which would be governed according to the distinctions of gifts and roles.

This complements a participatory hierarchy whereby such role differentiations would exist in the church, with varying tasks and authorities afforded to those roles. Influence would flow freely among roles fully, but in a way appropriate to their function or office, for the good of the common life.

This contributes to a ius commune but at the same time allows for the concept of
Economy/ οικονόμια to be applied to the community which recognizes
that such an application is always an exception to the general rule.

On the basis of this argument he holds that the Covenant proposals are inadequate:

A draft of a Covenant without a canonical and conciliar structure illustrates once again that Anglican leaders seem unable to grasp the conciliar nature of the Church. A new model for a new day is required where conversations about Canons and Covenants are not simply the speculation of non-binding conferences that insure autonomy over and above authority.

Comment:

One key to Donlon's argument is the concept of subsidiarity. This is built into English canon law (see Canon B5), is discussed in the Windsor Report, but seems to have been wholly forgotten in the subsequent Covenant process. Donlon sets out three layers of law but does not specify the criteria by which matters should be allocated to one or another layer.

In principle I am not averse to this approach on two conditions: first, the more universal the law the more general it should be. Second, any law that can possibly by made at a local level should never be made at a higher level. I am averse to it in practice because the opposite is inevitably the case. Every local dispute leads to higher level decision making and once a decision is made at a higher level it is almost impossible to give the subject back to more local decision makers: it is a one-way ratchet.

Donlon is also keen to retain the diversity of locations of decision making which, in the proposed Covenants, are being reduced to the Instruments of Unity.

The concept of Divine Law, though venerable and theoretically the base of Catholic canon law, is problematic. There is no consensus about what constitutes such a law, which laws should be given such status and which should not - and, anyway, if divine law can only be identified by consensus then it is the law of the consenting, not of God.

The fact is that the move to a single canon law (unitary or layered, subtle or sledge hammer) is an attempt to cut across not only the 44 different localities of law making but also the fissures in the Communion which run through the middle of provinces as well as between them.

I think one clue to what is happening is in the quote from Stephen Pickard: 'The resolution of the tension between canons and covenants amidst such conflicts is “essentially contested and undecidable, particularly if the consensus fidelium is important in the determination”.' (see above).

The proposal for a single Communion law is an attempt to cut across the consensus fidelium because it does not exist either in the sense of the 'common mind' of the church or in the sense of the reception of change by the church. It is an attempt to declare to the Communion what their consensus fidelium must be: conform and be part of the Communion, or dissent and leave. It is an alternative to seeking a consensus fidelium.

It seems to me (see future posts) that the idea of law as integrative of the communion systematically ignores questions of power. Lawyers tend to see law as a good in itself (especially canon lawyers with a yearning for divine law) and tend to objectify laws as somehow morally (or, in this case, ecclesiologically) neutral.

I see canon law, and constitutional law in particular, as the outworking of conflicts between the contending groups in the church. They are temporary truces in the continual struggle to constitute and re-constitute the church in the group's own image.

Therefore the idea that law is an answer to the travails of the Anglican Communion seems to me a category error: law is the formal expression of an answer. The answer on the table at the moment is that the elite of the Anglican Communion are to take power to themselves to impose upon the rest of the body one particular solution, dressed in legal clothes. As no such power presently exists in any law, the reality of power will have to be covered up by retrospective law.

The Covenant remains an ecclesiastical coup d’état (coup d'eglise?)