The sources and forms of law

At international level, the Anglican Communion has no formal body of law applicable globally to its 44 churches in communion with the See of Canterbury; each church is autonomous, with its own legal system. The Communion is held together by ‘bonds of affection’ – shared loyalty to Scripture, creeds, baptism, Eucharist, historic episcopate – and its institutional instruments of communion: Archbishop of Canterbury, Primates' Meeting, Lambeth Conference and Anglican Consultative Council, but these cannot make decisions binding on churches. However, The Principles of Canon Law is a statement of principles induced from the common content of the substantive laws of the churches.Footnote ¹⁰ Furthermore, the Communion is currently debating adoption by each church of an Anglican Covenant on faith, mission and relationships, and whether such a covenant will bind each church juridically.

The Catholic Church, although it has a vast number of members and a global presence, because of its self-understanding has a strongly unified and hierarchical character, reflected in its canonical system. The baptised in full communion with the Catholic Church on earth are those who are joined with Christ in his visible body, through the bonds of profession of faith, the sacraments and ecclesiastical governance. As for the Church's supreme authority, one has to look at the Roman Pontiff and the College of Bishops. By virtue of his office, the Roman Pontiff not only has power (potestas) over the universal Church but also has pre-eminent ordinary power over all particular churches (such as dioceses) and their groupings. The Roman Pontiff, bishop of the church of Rome, has supreme, full, immediate and universal ordinary power in the Church, and he can always exercise it freely. This power reinforces and defends that of the bishops in their particular churches. The Roman Pontiff is always joined in full communion with the other bishops, and, indeed, with the whole Church. The College of Bishops has as its head the Supreme Pontiff and its members are the bishops as specified. This College, in which the apostolic body abides in an unbroken way is, in union with its head and never without its head, also the subject of supreme and full power over the universal Church. The main legislative manifestations of this ecclesiology are the 1983 Code of Canon Law for the Latin Church and the 1990 Code of Canons of the Eastern Churches.Footnote ¹¹

In Anglicanism, at national level, ‘law’ is understood as ‘a binding public instrument created within a church by a duly constituted lawful authority of that church, that is, a species of human law as distinct from the will or law of God’ (Principles, Definitions). Within each 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. Some churches have a code of canons only. Most have a constitution, canons and other regulatory instruments, including rules and regulations, ordinances, resolutions and liturgical rubrics found in the service books. Alongside written laws are less formal and sometimes unwritten sources: customs or tradition, the decisions of church courts and, more rarely, the English Canons Ecclesiastical 1603, or pre-Reformation Roman canon law. In addition to formal laws, churches today increasingly use what may be styled ecclesiastical quasi-legislation: informal administrative rules designed to supplement formal laws (to clarify or implement them); these resemble laws (with prescriptive language) but may not bind in the same way as laws properly so called.

In a strict sense, ‘national churches’ are not possible in the Catholic Church, but in an extended and qualified sense the Eastern Catholic Churches and the Conferences of Bishops do have constitutive ‘national’ elements. There can be groupings of various kinds within the Catholic Church, and they can have some legislative and other power. One can look at ecclesiastical provinces and regions, at metropolitans, at particular councils and at Conferences of bishops. These ‘Conferences’ can issue general decrees only for those matters allowed by universal law or as determined by the Apostolic See. There is a significant body of complementary norms to the 1983 Code, including some by English-language Conferences of bishops. Of importance in an ecumenical context are the revised directory Mixed Marriages, promulgated by the Conference of Bishops of England and Wales in 1990, and the 1998 teaching document One Bread One Body on the Eucharist and sacramental sharing from the Conferences of Bishops of England and Wales, Ireland and Scotland. At the national level, more is involved than legislation properly speaking, including instruments such as guidelines and policy statements.

The Principles of Canon Law articulates several maxims about the sources and forms of Anglican canon law. Scripture, tradition and reason are fundamental authoritative sources of law. The laws of churches exist in a variety of formal sources, which should be identifiable, including constitutions, canons, rules, regulations and other instruments. Historical sources recognised as such in the canonical tradition, including custom, have such status within a church as may be prescribed by its law. Laws contain principles, norms, standards, policies, directions, rules, precepts, prohibitions, powers, freedoms, discretions, rights, entitlements, duties, obligations, privileges and other juridical concepts. Laws should be short, clear and simple to the extent that is consistent with their purpose, meaning and comprehensiveness (Principle 4). Moreover, a ‘principle of canon law’ is

In Anglicanism, the category ‘the principles of canon law’ is already formally recognised by at least four Anglican churches; and many churches explicitly appeal to principles in their own legal systems as the foundation for more detailed rules, giving the latter shape, coherence, meaning and purpose. The principles are general propositions or maxims that express fundamental ecclesial values; some are descriptive, others prescriptive. Principles differ from rules (which apply to specific circumstances) and enjoy a dimension of weight. A variety of sources is employed, from which the Principles are derived. Most are from church constitutions and canons, many from service books (which themselves enjoy canonical authority) and their liturgical norms. 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, from the canonical tradition, or from divine law or the practice of the church universal. Others are rooted in a theological idea expressed in laws or are derived from guidance issued by ecclesiastical authorities to supplement and explain church law. While 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. 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’), many are precepts (‘shall’, ‘must’), some are prohibitions (‘shall not’, ‘no-one shall’); many are exhortations (‘should’), expressing aspirational norms; and some are in the form of maxims (‘is’).Footnote ¹³

Canon law, in the Catholic Church, could be defined as the amalgam of divine and human law. Fundamental theological issues are involved here. In terms of divine law (ius divinum), there is divine positive law and divine natural law. Both come from God, revealed fully in Jesus Christ. The Scriptures and tradition are inseparable and essential sources of canon law, understood in the light of the Church's teaching authority. Human (ecclesiastical) laws specify in time and space the identity and mission of the Church, under God's providence. The 1983 Code of Canon Law does treat of ecclesiastical laws, stating for instance that they come into being when promulgated, that laws generally concern matters of the future and not the past, that ‘merely ecclesiastical laws’ bind those who were baptised in the Catholic Church or were received into it, and that universal laws are binding everywhere on all those for whom they were enacted. Moreover, laws are authentically interpreted by the legislator or his delegate. If on a particular matter there is no express provision of either universal or particular law, nor a custom, then, provided it is not a penal matter, the question is to be decided by taking into account laws enacted in similar matters, the general principles of law observed with canonical equity, the jurisprudence and practice of the Roman Curia and the common and constant opinion of learned authors. Significantly, when the law of the Church remits some issue to the civil law, the latter is to be observed with the same effects in canon law, insofar as it is not contrary to divine law and provided it is not otherwise stipulated in canon law.

The subject matter and scope of law

There is considerable but not exact convergence between Anglican churches nationally as to the subjects treated by their regulatory instruments. What differs is the instrument by which subjects are treated. Typically, constitutions treat matters of faith and doctrine, territorial, governmental and institutional organisation (legislative, administrative, judicial), appointment of bishops, discipline, and property; while canons address functions of ordained and lay ministers, and liturgical and sacramental matters. At international level, while the proposed Anglican covenant provides for common identity, communion relationships and commitments, the exercise of autonomy and management of communion issues, The Principles of Canon Law deals more widely with church order, communion relationships, government, ministry, doctrine, liturgy, rites, property and ecumenism. Equally, however, the principles recognise ‘the limits of law’: laws should reflect but cannot change Christian truths; laws cannot encompass all facets of ecclesial life; laws cannot prescribe the fullness of ecclesial life, ministry and mission; laws function predominantly in the public sphere of church life; and some laws articulate immutable truths and values (Principle 4).

The subject matter and scope of canon law have varied across the centuries and in different places. Simply to list the titles of the seven books that constitute the 1983 Code, they are: general norms, the People of God, the teaching office of the Church, the sanctifying office of the Church, the temporal goods of the Church, sanctions in the Church and, finally, processes. To specify further the contents of two of these books may be helpful. Book II, on the People of God, deals first with Christ's faithful, then with institutes of consecrated life and societies of apostolic life and lastly with the hierarchical constitution of the Church. Book IV, on the sanctifying office of the Church, is also subdivided into three parts. First there are the seven sacraments, then the other acts of divine worship and, finally, sacred places and times. The two Codes do not of course contain the whole of existing canon law. It is important to identify accurately the nature and authority of the various kinds of documents used for papal, curial or other pronouncements. This requires distinguishing such texts as Apostolic Constitutions, instructions, directories and so forth. There exist various canonical concepts – such as equity, dispensation and the salvation of souls – that interact with larger theological principles and values. An important interpretative norm states that ecclesiastical laws are to be understood according to the proper meaning of the words considered in their text and context. If the meaning remains doubtful or obscure, there must be recourse to parallel places, if there be any, to the purpose and circumstances of the law and to the mind of the legislator.

The purposes of Church law: theology and law

In Anglicanism, the purposes of law are shaped by the understandings that each church has about the nature of the church (its ecclesiology) and about itself as an institutional church (its ecclesiality). First, at national level, the principal purposes of juridical instruments are to facilitate and to order the life and mission of that church; typically, law exists ‘to serve the sacramental integrity and good order of the Church and to assist its mission and its witness to the Lord Jesus Christ’ (Church in Wales). In turn, The Principles of Canon Law provides, on ‘law in ecclesial society’, that law exists to assist a church in its mission and witness to Jesus Christ; a church needs within it laws to order, and so facilitate its public life and to regulate its own affairs for the common good; and the law is not an end in itself (Principle 1). Globally, the objects of an Anglican Covenant are unity; reconciliation, recommitment and trust; identity, clarity and understanding; order and stability; and mission and witness. The purposes of the principles of canon law common to the churches are not dissimilar.

Secondly, there is an intimate relationship between church law and theology. While Anglican canonists have not yet developed a systematic theology of canon law, they often recognise theology in canon law, as theological ideas clearly surface explicitly (particularly in descriptive provisions) in laws. In turn, The Principles provide (in Principle 2) that law is the servant of the church; law should reflect the revealed will of God; law has a historical basis and a theological foundation, rationale and end; law is intended to express publicly the theological self-understanding and practical policies of a church; and law in a church exists to uphold the integrity of the faith, sacraments and mission, to provide good order, to support communion among the faithful, to put into action Christian values, and to prevent and resolve conflict.

Thirdly, therefore, the law of a church has a relationship with divine law. At national level, as with the proposed Anglican Covenant, Scripture is presented juridically as the ultimate standard and rule in matters of faith, but there is no obvious legal evidence indicating a general practice that divine law binds directly in a juridical sense, nor that divine law vitiates contrary canon law. At international level, the Principles provides that church law should reflect the revealed will of God. They also recognise clearly, both explicitly and implicitly, the limited applicability of law in the Church: later laws abrogate earlier laws; laws are prospective and should not be retrospective in effect unless this is clearly provided for in the laws themselves; laws cannot oblige a person to do the impossible; persons cannot give what they do not have; laws should be applied in the service of truth, justice and equity; and laws may be dispensed with in their application to particular cases on the basis of legitimate necessity provided authority to dispense is clearly given by the law (Principles 2 and 7).

As with Anglicanism, in Catholicism the purposes of law are shaped by the Church's self-understanding. Canon law is, we might say, applied ecclesiology. There have been different schools of thought concerning canon law and its purposes, but we can select as a particularly authoritative and comprehensive account that given by Pope John Paul II in his Apostolic Constitution Sacrae Disciplinae Leges, promulgating the 1983 Code. Although the focus was on the Code about to be promulgated, we find in this Constitution a sketch of a theology of canon law and a theology in canon law. In essence, the Code accords with the nature of the Church and especially expresses its ecclesiological doctrine. For Pope John Paul II, in a certain sense the Code could be viewed as a great effort to translate the ecclesiological teaching of Vatican II into canonical terms.

The Pope began with a reminder of the distant legal heritage contained in the Old and New Testaments, from which, as from its first source, derives the whole juridical and legislative tradition of the Church. He then adduced various texts from the New Testament before concluding that the purpose of the Code is not to replace faith, grace, charisms or charity. The Code looks to the achievement of order in the ecclesial society, such that, while attributing a primacy to love, grace and the charisms, it facilitates at the same time an orderly development in the life both of the ecclesial society and of its individual members. Over and above the fundamental elements of the hierarchical and organic structure of the Church established by the divine founder, and besides the principal norms that concern the exercise of the threefold office entrusted to the Church, it is necessary also to define certain rules and norms of action.

Since the Church is established in the form of a social and visible gathering, continued the Pope, it needs rules so that its hierarchical and organic structure may be visible; that its exercise of the functions divinely entrusted to it, particularly of sacred power and the administration of the sacraments, is properly ordered; that the mutual relationships of Christ's faithful are reconciled in justice based on charity, with the rights of each safeguarded and defined; and lastly that the common initiatives, which are undertaken so that Christian life may be ever more perfectly carried out, are supported, strengthened and promoted by canon laws.

The effect and enforcement of law

In Anglicanism, the extent to which, and the ways in which, regulatory instruments are binding vary between the different churches. At national level, in some churches the laws bind only ordained ministers, but in others they bind both ordained and lay persons. Often laws provide for undertakings to be made by church members to assent to or comply with the law. The administration and enforcement of law is assigned to a variety of institutions. On the one hand, compliance is effected by means of executive or quasi-judicial authority, typically on the basis of the doctrine of canonical obedience – clergy must obey the lawful and honest directions of their bishops. On the other hand, churches provide for formal judicial law enforcement and resolution of conflict: courts and tribunals are ordered hierarchically and their subject-matter jurisdictions are prescribed in laws. Alongside the courts, numerous commissions and other bodies may be charged with the function of authoritative interpretation. Failure to comply with the laws may result in proceedings for offences and imposition of sanctions (typically conceived as medicinal and corrective, such as rebuke, suspension and exclusion). The proposed Anglican Covenant, too, provides for discipline (namely, for a decision of the instruments of communion in the case of relinquishment of the purposes of the covenant), and one proposal is for it to bind legally (through enactment in the law of each church).

By way of contrast, The Principles of Canon Law do not bind the churches internationally but are of persuasive authority. The principles have the appearance of laws (they may be preceptive, prohibitive or permissive), but they are not themselves laws: they are principles of law. Indeed, the principles themselves are evolutionary. 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; also, churches are developing rules on the admission of the unconfirmed to Holy Communion, particularly children. However, the Principles recognise the binding effect of the laws from which they are induced: the law binds the bishops, clergy and lay officers; the laws of a church may bind lay people who do not hold office; no-one shall be above the law; all institutions and persons in positions of authority or office, ordained and lay, shall act in accordance with law; laws, rights and duties are enforceable within a church by its own ecclesiastical authorities through executive action or by judicial process; any person or body injured by a violation of law should be able to obtain a remedy before a competent ecclesiastical authority in accordance with the law; and, a voluntary declaration, or other form of assent prescribed by law, to comply with ecclesiastical jurisdiction, binds the person who makes that declaration (Principle 5). The Principles also deal with the interpretation of law.Footnote ¹⁴ Finally, most Anglican churches function in civil law as voluntary associations, and their internal rules have the status of terms of a contract, entered into by the members, which are enforceable in matters of property in state courts.

In Catholicism, canonical laws by their nature demand observance. We have already considered how full communion involves being joined with Christ in his visible body through ecclesiastical obedience, and how universal ecclesiastical laws (let alone divine law, positive and natural) are binding everywhere on all those for whom they were enacted. The power of governance or of jurisdiction belongs to the Church by divine institution, and it is divided into legislative, executive and judicial power. In accordance with the provisions of the law, those in holy orders are capable of the power of governance, while lay members of Christ's faithful can co-operate in the exercise of this same power in accordance with the law. All may lawfully vindicate the rights they enjoy in the Church before the competent ecclesiastical forum in accordance with the law.

The Church has an inherent right to constrain with penal sanctions Christ's faithful who commit offences. In outline, the penal sanctions of the Church are medicinal penalties or censures and expiatory penalties. The Church may deprive a member of some spiritual or temporal good, consistent with the Church's supernatural purpose. Use can also be made of penal remedies and penances, the former primarily to prevent offences, the latter rather to substitute for or to increase a penalty.

How the Catholic Church is considered in civil law obviously varies throughout the world and may be affected by the existence of concordats or other binding agreements. In terms of its own ecclesiology, the Church asserts the duty and inherent right, independent of any human authority, to preach the gospel to all peoples, using for this purpose even its own means of social communication. Indeed, it pertains to the Church always and everywhere to proclaim moral principles, even in respect of the social order, and to make judgments about any human matter in so far as this is required by fundamental human rights or the salvation of souls.

Conclusion

In sum, both the Anglican Communion and the Catholic Church are governed by complex systems of law but, unlike Catholics, Anglicans have no global canon law. The respective ecclesiologies, emphasising either a universal papal authority and espiscopal collegiality or provincial and national autonomy, mean that national laws have a different significance for each system. The Principles of Canon Law represents a significant innovation in the Anglican landscape: although it does not have the juridical authority that is provided for the Catholic Church by its two Codes of Canon Law, it nevertheless gives evidence of a global canonical picture for Anglicanism and permits a fuller comparison than by simply referring to the individual Anglican churches. Both Anglicans and Catholics agree that Scripture and tradition are fundamental sources for canon law, though Anglicans do not have the categories of divine positive law and divine natural law. In Anglicanism, the making and application of law involves the laity more than occurs among Catholics, who stress the clerical nature of the power of governance. There is a good deal in common concerning the subjects dealt with by the respective laws, not least as regards governance, ministry, property and the sacraments. Both systems have to relate to civil law. Anglicans and Catholics have similarities in their approaches to the interpretation and enforcement of law.

Canon law can be perceived as an obstacle to the advancement of fuller visible communion because of its need for clarity, certainty and stability. This may in part explain why comparative canon law has been the missing link in much ecumenical dialogue. However, given its thoroughly theological nature and its capacity to order and facilitate Christian life and mission, it definitely has its place in ecumenical dialogue and activity. In a surprisingly detailed way, we have identified a common legal heritage, profound existing similarities and possible future convergences.

Church property

Clergy discipline

Initiation and membership

Authority

Orders: fundamental elements

The fundamental elements prescribed for the rite of ordination are common to both traditions and from these fundamental elements we obtain an understanding of the nature of sacred ordination.

Both communions agree in the belief that the Holy Spirit is active in ordination and the liturgy performed provides an assurance that ordination is the action of God through His Church. Both communions agree that ordination is the fulfilment of what the Church intends and that in canon law it is of divine institution, confers indelible character with the consent of the candidate through the imposition of hands by the bishop and prayers for the invocation of the Holy Spirit, to give grace for the work of a priest or deacon. Neither canon law provides a clear definition of apostolicity. Roman Catholic and Anglican canon law do not prevent the development of a shared understanding of apostolic succession that may provide an opportunity for recognition of ministries. We share an interest in the growing understanding of historic apostolic succession and apostolicity and expression in canonical categories.

Ministry

Formation for ordained ministry

Marriage

Conclusion

The most significant canonical similarities derive from historic, and in some instances ancient, sources that have survived into the modern systems. The areas where we found particular similarity are the sacraments of initiation, the ministry for service to the people of God and a pastoral concern for marriage and the family.

Conceptual and procedural

There are a number of differences and distinctions of principle between canon law of the Anglican Communion and that of the Roman Catholic Church.

Property

Roman Catholic canon law has both clear universal principles and detailed specific regulations for ecclesiastical property and sacred places and goods, whereas the Anglican position is subject to local and regional variation. The Roman Catholic Church operates a system of ecclesiastical taxation that is universal and compulsory, with the bishop as the taxing authority, whereas that in the Anglican Communion systems is local or provincial: in some instances it is merely voluntary, and the taxing authority is synodical. The wide scope of papal primacy in matters of property finds no equivalent in the Anglican Communion, where concepts of dispersed authority and local ownership prevail.

Clerical discipline

The key difference concerning clergy discipline is that Roman Catholic procedures are generally conducted in private and determined by clergy, whereas Anglican canon law provides for secular lawyers and judges to be involved in the process and, in some provinces, hearings take place in public. The Anglican Communion has no equivalent to the Roman Catholic canonical institute of incardination. Perhaps as a consequence, while both communions continue to regard clergy as office-holders, there is a tendency in certain provinces of the Anglican Communion to engage more fully with the state legislatures in matters of secular employment law. It should be noted that in many provinces of the Anglican Communion a considerable number of clergy are non-stipendiary and employed in secular posts. The Roman Catholic Church seems to make more successful use of extra-judicial disciplinary process than does the Anglican Communion.

The norms regulating the inscription of and jurisdiction over clerics, their rights and obligations, and their loss of the clerical state are treated in Book II of the Code of Canon Law, Canons 265–293.

Church membership and initiation

The two communions are similar in that baptism is the rite of initiation into the Church of God and is, in itself, non-denominational. The Church of England, anomalously, has legal duties to marry and to bury parishioners irrespective of any concept of ‘membership’ but, with the exception of the Church in Wales, this vestige of establishment is not replicated elsewhere in the Anglican Communion.

In the Roman Catholic Church, membership within it comes with baptism by a Catholic minister and according to Catholic rites, or by another minister who intends to incorporate the one being baptised into the Roman Catholic Church, respecting the desire of the baptisand or his or her parents. An already baptised person is made a member of the Roman Catholic Church through the profession of faith and rite of reception carried out by an authorised minister. Through either of these gateways the person becomes bound by ecclesiastical laws and the subject of their rights and obligations. The principle of semel catholicus semper catholicus holds that no one can withdraw himself or herself from the bonds of ecclesiastical law, either through excommunication or through an act of defection, formal or otherwise. It is the rare exception to this principle that one who formally defects from the Catholic Church is no longer subject to the matrimonial impediment of disparity of worship or the obligation of observing the canonical form of marriage.

In the Roman Catholic Church there are complex norms regulating the administration of the sacrament of confirmation by a presbyter.

Authority

Two critical differences between the Roman Catholic Church and the Anglican Communion are the role of the Petrine office and the primary concentration in the hands of the clergy of the threefold munera of teaching, sanctifying and governing.

Roman Catholic doctrine and discipline affirms that, by virtue of his office, the Roman Pontiff possesses supreme, full, immediate and universal ordinary power in the Church, which he is always able to exercise freely. Even though the supreme authority of the Church resides also in the College of Bishops, membership in that college depends on each bishop's communion with the Roman Pontiff and the canonical mission, which the same Pontiff confers on him. The College cannot act except in union with its head. An ecumenical council's decrees require the approval of the Roman Pontiff, and, when the Apostolic See is vacant, a council in session is automatically suspended so that the new Pontiff is free either to continue or to dissolve it.

While the exercise of jurisdiction by the Roman Pontiff respects the principle of subsidiarity, he is free to exercise it freely even within particular churches. This contrasts with a primacy of honour accorded to the Archbishop of Canterbury within the Anglican Communion as one of its Instruments of Unity, but with each primate presiding over a composite autonomous province.

The second critical difference with respect to the exercise of authority is that, in the Roman Catholic Church, lay persons are said only to ‘co-operate’ in the exercise of the power of governance, for which clerics are said to be ‘qualified’. Furthermore, only clerics may hold those offices that carry with them the exercise of jurisdiction. Exceptions to this include members of finance councils, whose consent is required in order for superiors to place certain financial acts, and the role of one lay judge on a panel together with two clerical judges.

Most consultative bodies that include lay members are only advisory and not deliberative (such as diocesan synods, diocesan and parish pastoral councils). The superior in question controls the agenda and is the sole decision-maker. The same holds for most of the consultative roles of others in the Church including, for example, that of the Synod of Bishops vis-à-vis the Pope and the presbyteral council vis-à-vis the diocesan bishop.

The role of Anglican lay persons in law-making and administration is more extensive and determinative. Principle 15.9 of The Principles of Canon Law provides that ‘Bishops, clergy and laity of a church share authority in synodical government’. See also Principle 25.3: ‘Lay persons exercise authority in church life and governance according to law’.

Orders and ministry

The Roman Catholic members reaffirmed that Apostolicae Curae was a valid statement for its time and that it was teaching that is to be definitively held. It was recognised that the application of too narrow a test for establishing apostolic succession leads nowhere ecumenically, and that the arguments of Apostolicae Curae were met by equally cogent arguments from the Anglican bishops, particularly that the Roman approach would necessarily result in the conclusion that all ordinations of the first millennium were ‘invalid’. The non-catholic Eastern Churches speak of Anglican orders having a ‘spiritual’ validity. The Anglican side of the argument was that apostolicity is possible without communion with the Pope and resides not only in tactile succession but also in continuity of the ecclesial communities under episcopal leadership. It was agreed that the main challenge was how to define apostolic faith and how much of it should be present to justify recognition. In the light of definitive teaching contained in Apostolicae Curae, the Roman canon law cannot generically confirm the recognition of Anglican orders.

The admission of women to the presbyterate and episcopacy creates a further problem for Roman Catholics concerning the validity of Anglican orders more generally. Does the belief common among many Anglicans that women can be validly ordained to the priesthood vitiate the intention of even a validly ordained bishop? Similarly, the Protestant denial of the sacramentality of holy orders raises further questions about the content of an Anglican bishop's intention when he ordains, even if in individual cases the validity of his own episcopal orders were affirmed. At very least, the Roman Catholic Church would univocally deny the validity of any ordination attempted to be conferred by a woman Anglican bishop. The very category of ‘validity’ is a further difference between the two canonical systems.

In the Roman Catholic Church, the leadership role of the laity in most liturgical functions is rather narrow and seen primarily to supply for the lack of clergy.

Clerical formation

Once again, in the Roman Catholic Church regulation of this matter is highly centralised. There is a lengthy treatment of priestly formation in the Code of Canon Law and in other documents generated by the Congregation for Catholic Education, which has competence in this area. It is noteworthy, however, that there is ample provision for adaptation at the national level such that clerical formation be tailored both to the educational systems of different nations and to the historical, social and pastoral needs in various places.

The long quasi-monastic dimensions of seminary formation in the Roman Catholic tradition could be identified as a difference between it and the Anglican Communion on this topic. Indeed, the law of celibacy, which is obviously not a concern in the Anglican Communion, has a significant influence on many aspects of priestly formation in the Roman Catholic Church.

Marriage

In the Colloquium's discussion of marriage, its indissolubility was identified as an ideal and an expectation on the part of both groups. The dissolution of marriage must always remain exceptional. However, even though the doctrinal views of marriage underpinning the legal provisions of each communion contain fundamental similarities, each communion employs radically different views of the role of civil law on marriage, and this is evidenced particularly in the attitudes taken to dissolution. Whereas the Roman Catholic Church has extensive norms on mixed marriages, few Anglican churches have provincial norms operative on this subject. A fuller consideration of this topic might include an overview of the operation and provisions of the system of permissions and dispensations that operate according to Roman Catholic canon law, particularly the dispensation from form. For example, what constitutes ‘grave difficulties’ (Canon 1127 §2)? Would the advantage of good ecumenical relations in itself be a sufficient ‘serious reason’? Anglicans could perhaps move towards the recognition of Catholic disabilities (impediments) to enter valid marriages.

The Roman Catholic canon law of marriage makes the distinction between matters of natural and positive divine law with regard to marriage on the one hand, and merely ecclesiastical law on the other. This distinction is helpful in determining which laws are binding on all persons (divine law) and which are subject to dispensation (ecclesiastical laws). When divine law is not at issue, the Roman Catholic Church has lately recognised in the instruction Dignitas Connubii the normative character of the law of ‘ecclesial communities’ (among which, for this purpose, the Anglican Communion may be categorised) in adjudicating the validity of marriages that take place within the Anglican Communion. But here again, the category of ‘validity’ appears to be one of greater moment to Catholics than to Anglicans.

Conclusion

The most significant canonical differences discussed above appear to be fundamentally rooted in principles of theological doctrine and therefore not subject to merely ecclesiastical law. Such issues, therefore, as papal primacy and infallibility, the ordination of women, divorce and remarriage, and the role of the laity in governance present the greatest challenges to fuller visible communion.

Ecclesial self-understanding

The twentieth century saw both the Anglican Communion and the Roman Catholic Church reflecting on their self-awareness as Church. For the outset, it must be acknowledged that the two traditions hold very different understandings of the nature of the visible Church.

From the Roman Catholic point of view, it is in the Dogmatic Constitution on the Church, Lumen Gentium, promulgated by the Second Vatican Council (1962–1965), above all other documents that the Church expresses its own self-awareness. Whereas the First Vatican Council had begun its Constitution on the Church with the primacy of the Roman Pontiff and the hierarchical nature of the Church,Footnote ¹⁵ Vatican II adopted a radically different approach. Vatican II spoke initially of the Church as a mystery, devoting the first chapter of Lumen Gentium to the theme. A good summary of the Council's view of the Church is found in a quotation it used from St Cyprian, in which the Church is seen to be ‘a people brought into unity from the unity of the Father, the Son and the Holy Spirit’.Footnote ¹⁶

The Church as a visible reality

In the eyes of the Council, the fundamental essence of the Church is that of a people called to live in intense communion with God – Father, Son and Holy Spirit. This teaching is expanded in Chapter II, which deals with ‘The people of God’. Vatican II addresses the issue of the hierarchical nature of the Church only in Chapter III, making it clear that this hierarchical structure is in the service of both the Church as a mystery and the Church as the people of God:

First and foremost, in its essence, the Church is a people called by God to share in the innermost life of the Trinity, called to a life of holiness; the hierarchical and visible structure of the Church exists to serve this goal, this divine purpose, that all those whom God has called may achieve the holiness intended: an intimate life with God. The theme of the universal call to holiness is set out in Chapter V:

The hierarchy in the Church has been established as a means towards helping the people of God achieve their fundamental goal, sanctification. This hierarchy is part of the visible, social phenomenon that is identified as the Church. The Council was at pains to point out that the visible social structure is not in any way at odds with the fundamentally mystical reality of the Church as the people of God:

The Council's Constitution on the Sacred Liturgy provides this summary:

Anglican understandings of the Church

There is much in this with which Anglicans would agree but, for them, the historical expression of the life of the Church has been fractured in its history, so that the one Church of Jesus Christ has no single universal historical expression. In particular, Anglicans understand the Anglican Communion as a family of Churches, all belonging to the One Holy Catholic and Apostolic Church of Jesus Christ.

However, in Anglican understanding, while each Church embodies the fullness of the Church, each Church is in some sense historically contingent.

There are some fundamental similarities between this vision of the Church and the role of the visible structure and that found in the 1930 Lambeth Conference Appeal. By 1965, both the Anglican Communion and the Roman Catholic Church were taking as their starting point for dialogue a radically spiritual understanding of the Church: a people united in response to God's call.

Canon law in ecclesial life

In the Roman Catholic tradition, canon law as such belongs to the visible and hierarchical structure of the Church that exists to serve all God's people in their quest for holiness. Vatican II offered its own reflections on the subject of the relationship between the external, juridically organised Church and the mystery of supernatural communion. The key to this relationship is the famous analogy between the mystery of the Incarnate Word and the mystery of the Church:

In the Catholic Church, the 1983 Code sought to express many of the insights of the Vatican Council in strictly juridical terms. This is reflected particularly in Book II, The People of God: here, before any attention is given to the norms governing hierarchy, authority, processes and the like, the Code addresses the obligations and rights of all the Christian faithful. Such a layout echoes one of the purposes of canon law: that is, to create a framework to assist the faithful exercise their rights and fulfil their obligations. The initial canons of Book II refer to all the faithful; later canons identify the obligations and rights of specific categories within the faithful – laity, clerics, religious and others.

The Code, the product of almost two decades of study and revision, is faithful to one of the principles that underlay the process:

There is no such explicit articulation of the role of canon law in the Anglican tradition. Nevertheless, as set out above, at the 1930 Lambeth Conference the bishops acknowledged that there were elements of the visible and social life of the Church that require regulation. For Anglicans, the appropriate level of this regulation was at the level of the regional Church. Each Church makes provision for its own life, provided that fundamental fidelity to the Catholic faith is maintained.

This means that it is much more correct to refer to Anglican canon laws rather than Anglican Canon Law. There is nothing in the Anglican Communion to parallel the 1983 Code of Canon Law or the 1990 Code of Canons of the Eastern Churches. Nevertheless, as has been mentioned earlier, a great deal of work has been done in recent decades to induce from the laws of the constituent Churches of the Anglican Communion some general principles that are verified in each particular legislation. This task was explicitly encouraged by the Windsor Report of 2004:

The importance of these principles was highlighted in the Windsor Report and in earlier documents of the Anglican Communion:

The text of The Principles of Canon Law appeared in 2008 and explicitly states the need for law in ecclesial life, as well as the role of law in the service of the Church:

It must be remembered that, in both the Anglican Communion and the Catholic Church, canon law as such functions in the service of the external, visible and social structures of the Church. Canon law mandates, prohibits, encourages, describes, admonishes, teaches, defines, sets limits, declares divine law, articulates, facilitates, enables, and so forth. This multi-faceted activity is a reflection of how the Church lives out its faith and the way in which its faith is expressed. It has been observed that canon law can be a primary source of evidence about the way in which a Church lives out its beliefs.

Ecumenical dialogue

The Anglican Communion, following firmly in the footsteps of the Lambeth Quadrilateral of 1888, articulated its vision in the ‘Appeal to all Christian people’ from the 1920 Lambeth Conference:

The purpose of this appeal was to set out the basis or foundation of relationships between the Anglican Communion and other Churches, seeking to recognise in them elements of the one true Church of Christ; this would enable the Anglican Communion to establish with them formal bonds of communion without this being the full communion or visible unity that was so desired. Evident in the appeal – and, indeed, its starting point – is the acknowledgement that the Church is first and foremost a ‘fellowship’ made in and through Jesus Christ. The life of this fellowship is to be found in the Spirit of Christ. Rather than begin with the visible phenomenon of the Church, the appeal considered the Church first of all from its spiritual, mystical and theological perspective. Of course, it acknowledges that God has manifested this spiritual fellowship in ‘an outward, visible and united society’. This is the Catholic Church, and its major identifying features are: one faith, its own recognised officers, the use of God-given means of grace, and an impetus to inspire all its members to serve the Kingdom of God. It was because this outward reality is not visible today that the appeal went on to set out the principles governing contacts and bonds with other Churches and communions.

The Roman Catholic Church has a much clearer sense of its identity as the expression in history of the One Church of Jesus Christ. In the recent ‘Responses of the Congregation of the Doctrine of the Faith to some Questions Regarding Certain Aspects of the Doctrine of the Church’,Footnote ²⁹ the following explanation was given:

Nevertheless, while asserting the unique character of the Roman Catholic Church as the Church of Christ, the same answer acknowledges that the Church of Christ is also partially present and active in other Churches and communities in which true elements of sanctification and truth may be recognised. From this point of view, the ecumenical quest becomes remarkably similar to that articulated in the 1920 Lambeth Conference. The recent report of the International Anglican–Roman Catholic Commission for Unity and Mission (IARCCUM) expressed the quest thus:

Therefore the ecumenical quest is for Churches to discover whether the essential elements of ecclesial life are present within one another (or whether there can be growth towards the nurture of their presence) and the extent to which they can be mutually recognised.

The fruit of canonical dialogue: clarity

As it exists in the Roman Catholic Church and the Anglican Communion today, canon law is the fruit of reflection on doctrine and practice for almost 2,000 years. This reflection has led to the alteration, updating and abolition of some positive ecclesiastical laws over the centuries – some of which were once considered to be based entirely upon immutable doctrine.Footnote ³² As with the 1917 Code, the 1983 Code employs very concise texts with clear rules of interpretation to be applied to a variety of possible circumstances. These texts are often stark in their clarity of expression. This clarity can be said to have a two-fold effect, one positive and one negative:

1. i. Positive, insofar as it highlights what the parties to the Colloquium can see they have in common, thus allowing them to recognise and appreciate something of the juridical framework and practice of the others;

2. ii. Negative, insofar as it leads to an emphasis on what the parties to the Colloquium see from very different perspectives, helping them to recognise what separates them from others, and to appreciate what is different in the others but not contradictory.

Canonical texts in the Churches of the Anglican Communion tend to be much fuller in their text and explain how and when they are or may be used. These broader texts also provide a similar level of clarity.

Of its nature, canon law – whether Anglican or Roman Catholic – properly so called provides a level of clarity that is not always verifiable (or even desirable) in other forms of inter-Church discourse. Law defines limits, outlines boundaries and establishes what is normative within each ecclesial communion. In this way, it can help participants to see what it is they understand and appreciate properly about the ecclesial life and ministry of the others, not from a standpoint of preconceptions or misunderstandings from history, but on the basis of what is clear and normative for the faithful within the Anglican Communion and within the Roman Catholic Church.

The activity of the Colloquium in its meetings so far has done much to advance the vision of Vatican II as expressed in Unitatis Redintegratio:

What the Council has to say about theology in this context can be applied very properly to canon law:

Much of the dialogue between the Anglican Communion and the Roman Catholic Church that took place in the four decades after Vatican II had to do with strictly theological matters. Only in 1999 did canonists begin to take up the challenge in an explicit and sustained manner.

Bearing the exhortation of the Council in mind, it can be stated that one of the most useful dimensions of Canon Law in ecumenical dialogue has been to remind all those engaged in it of the radical existence of the Church as the People of God, the Assembly of all those whom God wishes to call to a life of holiness, a life of intimacy with the Holy Trinity. The Colloquium on initiation and belonging to the Church was a fundamental and radical reminder to all participants of what we share in common. At the root of the Christian life as lived in the Anglican Communion and the Roman Catholic Church lies baptism in Christ and the lifelong quest for holiness. Everything else lies in service of that fundamental vocation.

Conclusion

By making clear what is not always perceived as clear, by setting out boundaries and limits, canon law not only serves as a useful source of norms regulating ecumenical relations but can be seen as an instrument of that very same dialogue. Canon law has helped us to see where we are radically united, and where we have yet to make progress in our journey. That clarity may sometimes be a source of pain and regret, but helps keep all those involved engaged in the enterprise that really matters: the quest to see what we can truly say we have in common, what we must acknowledge as irrevocably different and what is simply a legitimately different expression of something we share.

Recent developments in general Anglican–Roman Catholic relations

In May 2000, Dr George Carey, Archbishop of Canterbury, and Cardinal Edward Cassidy, President of the Pontifical Council for Promoting Christian Unity, called a meeting of bishops from both communions at Mississauga in Canada. The purpose of the meeting was to seek a way forward in the continuing relationship between the Anglican Communion and the Roman Catholic Church.

It was a meeting filled with hope for the future relationship between the two communions, and there was a recognition of how much was shared in common in terms of Christian belief and ecclesial life. At the end of the meeting, the bishops called for the establishment of a new body to promote relations between the two communions by seeking to translate the manifest agreement in faith into common life and mission. This commission was mandated to reflect on what had been accomplished in Anglican–Roman Catholic relations and by ARCIC and to ask what additional steps could be taken to further relations between the Anglican Communion and the Catholic Church. And so IARCCUM was established to prepare a joint declaration of agreement, which, it was hoped, would be signed by Anglican and Catholic authorities, setting out the shared goal of visible unity, an acknowledgement of consensus in faith that has been reached and a fresh commitment to share together in common life and witness.Footnote ³⁵

The initial enthusiasm that marked the meeting in Mississauga and the setting up of IARCCUM has been dampened by internal tensions within the Anglican Communion, particularly with regard to questions of human sexuality and, connected with this, the nature of the Anglican Communion and the bonds that hold the Anglican provinces together.Footnote ³⁶ The Anglican Communion has acted to address these difficulties through the work of the Lambeth Commission on Communion, whose Windsor Report strongly endorsed a Koinonia ecclesiology and made a number of recommendations in relation to the ‘autonomy-in-communion’ enjoyed by Anglican provinces. These included the adoption of an ‘Anglican Covenant’ to make provision for the acknowledgement of a common identity, the relationships of communion, the commitments of communion, the exercise of autonomy-in-communion and the management of communion affairs (including disputes). Discussions on the covenant proposal continue. In March 2009, the Ridley Cambridge draft was produced. In May, the Anglican Consultative Council strongly supported the text but decided that provinces should submit comments on Section 4 of the draft (on the management of Communion disputes) to a small working party of the Covenant Design Group. A report will then be made to the Joint Standing Committee of the Primates and Anglican Consultative Council, which, before the end of 2009, will send out a final text for discussion and formal adoption.

Ecumenical relations have also become more difficult as a result of proposals within the Church of England to move towards the consecration of women to the episcopate.

It was against this background that, in 2007, IARCCUM issued an agreed statement, Growing Together in Unity and Mission. It was not an authoritative declaration by the Roman Catholic Church or by the Anglican Communion but rather a statement intended to foster discussion and reflection. In the introduction it states that:

This statement highlights the delicate nature of relations at present and yet acknowledges the desire in both communions to build and foster relations in the best way possible.

Part I of the document, describing the faith that is held in common, explores nine doctrinal areas: God as Trinity; Church as communion and mission; the Word of God; baptism; Eucharist; ministry; authority in the Church; discipleship and holiness; and the Blessed Virgin Mary. Describing what is held in common in each of these areas, it also outlines the significant differences. The relationship between communion and mission runs through and pervades the nine areas.Footnote ³⁸

Part II challenges Anglicans and Roman Catholics to ‘develop those channels and practical expressions of co-operation by which a common life and mission may be generated and sustained’. In doing so, it identifies three areas in which a shared faith may be expressed in action: visible expressions of the shared faith; joint study in order to deepen the shared faith; and expressions of co-operation in ministry and shared witness in the world.

Recent developments in Anglican canon law

Within the Anglican Communion, canon law is typically expressed on a provincial basis. Despite the existence of comprehensive and illuminating studies comparing the law of the provinces,Footnote ³⁹ no attempt has been made previously to deduce common principles that could be said to reflect a shared set of beliefs about the nature of the provisions contained in Anglican canon laws. However, the new initiative of The Principles of Canon Law Common to the Churches of the Anglican Communion seeks to identify principles of canon law common to the member churches of the Anglican Communion.

It is important to recognise the limits of this exercise. It does not, in particular, constitute a corpus of canon law applicable to any province of the Communion, let alone the Communion as a whole. Nor is it intended that it should provide the basis for a common legal system for the Communion as a whole at some stage in the future: a common legal system would be inconsistent with the ‘autonomy-in-communion’ enjoyed by the member provinces, and to adopt such a system would (in addition to giving rise to difficulties from the point of view of the unique situation prevailing in England by virtue of the General Synod's role as a legislative organ of the state) involve a fundamental change in the character of the Communion.

However, the Principles project could have an impact in a number of ways. One consequence could be the promotion of unity within the Communion, by the formal recognition that the Principles give to its shared values. More relevantly to the work of the Colloquium, although they are essentially descriptive rather than prescriptive, future discussion of the Principles seems likely to encourage reflection both on the extent to which they themselves are consistent with the tenets and practice of Anglicanism and, within individual member provinces, of whether current or proposed local laws are consistent with them. Thus, as the Principles claim, they ‘have a strong persuasive authority’ and also ‘have a living force, and contain within themselves the possibility for further development’.Footnote ⁴⁰

As such, the Principles will clearly need to be taken properly into account in the future work of the Colloquium when considering issues that the Principles address. Indeed, the form of the Principles – expressed, as they are, in the form of general propositions (in contrast to much of the local canon law of the provinces of the Communion, which is based on common law principles) – may stimulate a wider interest in comparison between them and the provisions of the 1983 Code of Canon Law. To that extent, the Principles seem to represent a potential enrichment of the Colloquium's work.

Current issues in the pastoral situation

Issues between Anglicans and Roman Catholics that continue to be encountered in the pastoral context on the ground manifest themselves most clearly in relation to those couples preparing for and living in inter-Church marriages. Although each communion recognises and accepts the baptism of the other, parents still have to make a decision into which Church their children will be baptised and receive first Eucharist and confirmation. When the couple worship together and attend each other's Churches for Eucharist, they feel the pain of not having full eucharistic sharing. In the light of that, it is no surprise that Growing Together in Unity and Mission expressed the view that ‘Of particular concern in the area of ministry is the need to develop joint programmes of pastoral care for interchurch families (including marriage preparation) and to find ways to minister to their concerns.’Footnote ⁴¹

Possible areas for future exploration by the Colloquium

In reviewing the ten years of its work, the Colloquium was led to reflect on the very nature and purpose of canon law itself and the extent to which it embodies in substantive form the self-understanding of the two communions, in terms of their mission and their relationship to God. In that connection, the Colloquium was struck by the apparent absence, up to now, of consideration in the formal ecumenical processes of the extent to which canon law has that effect. It therefore identified as a priority for future work a deeper study of the nature and theology of canon law in the life of both the Roman Catholic Church and the Anglican Communion, addressing issues such as its purpose, character, sources and practice.

In the longer term, against the background of the current state of relations between the Anglican Communion and the Roman Catholic Church and the issues that continue to be met in the pastoral context, the Colloquium identified a wide number of other possible areas that could be fruitfully explored.

Issues relating to the Colloquium itself

Finally, this is a suitable moment to take stock of the position of the Colloquium itself. A number of issues arises in that connection.