Ecclesiastical Law Society Research Articles

The Ecclesiastical Law Society's 35th Annual Conference: Sacred Space

The Ecclesiastical Law Society's 35th Annual Conference: Sacred Space

Episcopacy, law and government

This Comment, based substantially on a lecture delivered to the Ecclesiastical Law Society on 5 July 2023, will explore how bishops engage with the legislature, comparing the example of Bishop George Bell in the last century with a rather different example in the present century, namely Pope Benedict XVI and his address to members of Parliament in Westminster Hall in 2010. The comparison will, I hope, indicate some historic dimensions to the issues of episcopacy, law and government that are pertinent today.

‘Legalists and Moralists’ in the Historic Portrayal of the Constitution of the Church of England

The Enabling Act 1919 provided for a new National Church Assembly able to make Measures with the same force and effect as an Act of Parliament. The 1919 Act was without question a constitutional moment with far-reaching effects; and it was about law, not morals: legalists triumphed over moralists. However, it was just one stage in a much longer trajectory of thinking about the constitution of the Church of England. This article, which started life as a lecture to the Ecclesiastical Law Society's day conference on 2 April 2022, takes the story further back – and widens it. It presents the key elements of thinking about the constitution – accidents, continuity, change – in the works of English ecclesiastical lawyers – civilians, common lawyers and clerical jurists – from the Reformation to the Act of 1919. To what extent, if at all, in their understandings of the church constitution, were our historic ecclesiastical lawyers legalists, or moralists, or both? Was the ecclesiastical constitution itself simply a legal category, or did it, and its basics, also have a moral quality? This article explores these questions in relation to: (1) the nature, sources, and purposes of the constitution of the Church of England; (2) legislative, administrative and judicial power; and (3) the rights of the individual enforceable against the decisions of ecclesiastical government. This article is based on a paper delivered to the Ecclesiastical Law Society's 2022 day conference.

Response to ‘“Legalists and Moralists” in the Historic Portrayal of the Constitution of the Church of England’

It is a great challenge to respond as a theologian to Professor Doe's magisterial survey in the article published in the previous pages of this Journal.I was asked to respond to the paper upon which that article is based from a theological perspective as part of the Ecclesiastical Law Society's 2022 day conference. Professor Doe demonstrates how, in the years between Hooker and the Church Assembly, ecclesiastical lawyers had recourse to both ethical, natural law arguments and those purely from legal or even positivistic ones. It is significant to see how frequently the Anglican theorist, Richard Hooker, is invoked throughout the article. He dates, of course, from the Reformation period when, as Harold Berman points out, a pre-Enlightenment jurisprudence still obtained which combined all three dimensions of law – the political, the moral, and the historical. In my view, what is important about Hooker is that he makes no separation between the legal and the ethical because law is divine in origin and even in God himself there is a law of his being: ‘the being of God is a kind of law to his working’ in giving his perfection to what he makes and ‘God is a law both to himself and to all other things beside’. Moreover, the ethical is only realised in what we decide to do and the laws we make. Law in Hooker is even Christological because, just as the Father begets the Logos (the Son), so the law proceeds as his continuing work in creation and history. To walk in God's ways and obey his laws is to be in union with Christ. Hooker was, of course, working out the meaning of the emerging Church of England in the Reformation Settlement, but even the pragmatic is itself participatory in the divine law and he appeals back to the natural law tradition for that reason.

Response to ‘Reflections on the Workings of General Synod’

There is much to address in responding to such a rich and thoughtful range of reflections as given by Bishop Pete in his article published in the previous pages of this Journal. I was asked to respond to that paper from a theological perspective as part of the Ecclesiastical Law Society's 2022 day conference, and this comment piece has been based substantially on that response. So many areas of theological relevance are raised by Bishop Pete: the nature of authority in the Church of England, the role of the bishop, the shortcomings of the synodical process and the legal framework for evangelism.

Reflections on the Workings of General Synod

This article is based on a paper delivered to the Ecclesiastical Law Society's day conference in 2022. It is a reflection on the workings of General Synod from the perspective of an author who has been a member of Synod for around 36 years. The article examines three discrete themes: (i) the problem of authority in the Church of England, (ii) the shortcomings of Synodical government, and (iii) the urgency of mission. It examines these themes by considering, among other things, the Church of England's response to a number of contemporary issues: its response to the COVID-19 pandemic, proposed reform of its governance structures, its ability to respond to issues concerning sexuality and racial justice, and the proposals for reforming the Mission and Pastoral Measure 2011, as set out in GS 2222.

Ecclesiastical Law Society Conference: ‘Accidents of Ecclesiastical Governance – Past, Present and Future?’

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50 Years of Safeguarding – 950 Years of Clergy Discipline: Where do we go from here?

This article is based on an Ecclesiastical Law Society London Lecture delivered on 17 November 2021. It builds on a previous lecture entitled ‘Safeguarding in church and state over the last 50 years: “from Ball and Banks to Beech via Bell”’, which also formed the basis of an article published in this Journal in 2020. That article, among other things, identified a number of significant cases of sexual abuse by clergy which were/are the subject of ‘lessons learned’ reviews and concluded by suggesting how investigation and fact-finding might take place in the future, independent of the bishops, but under the supervision of a ‘judge’, and argued that effective risk assessments could only be based on findings of fact. The author was subsequently asked to chair a working party for the Ecclesiastical Law Society aimed at addressing how the Clergy Disciplinary Measure 2003 (‘CDM’) should be reformed. This article now deals with events that have occurred since, from the publication of the Independent Inquiry into Child Sex Abuse (IICSA)'s investigative reports into the Anglican Church (inter alia), the Lambeth group's proposals for reform of the CDM, through to General Synod's responses to both sets of recommendations. It also surveys in some detail the approach the church has taken to the assessment of risk within its safeguarding policy in recent years, as well as its historical approach to clergy discipline. The article concludes by drawing some threads together as a result of the author's own work and research into these two subjects over the past two years, and finishes by suggesting some possible directions in which the church ought now to move.

The Caroline Divines and the Church of Rome: A Contribution to Current Ecumenical Dialogue – A Review Article

Readers of the Journal will recall the Ecclesiastical Law Society's long tradition of serious ecumenical engagement, embodied in the biennial Lyndwood Lecture with the Canon Law Society of Great Britain and Ireland, and recall that a number of members of the Society are regularly engaged with the Colloquium of Anglican and Roman Catholic Canon Lawyers. Moreover, ecumenical agreement and disagreement have canonical consequences, as, for example, in the debate about Anglican orders. In moral theology, particularly Roman Catholic moral theology, the relation between moral teaching, the confessional and canon law is obvious to any practitioner. My own interest in the Ecclesiastical Law Society was a direct consequence of my involvement in Anglican–Roman Catholic dialogue as successively co-secretary, member and consultant of the various embodiments of the Anglican–Roman Catholic International Commission (ARCIC) from 1974 onwards. An ecumenical conversation with Canon Graham Routledge, a founder member, led me to seek membership of the Society in its early days.

Ecclesiastical Law Society Conference: ‘Church and State in the Twenty-First Century’

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Ecclesiastical Law Society Day Conference: Gospel and Law in Theological Education

Ecclesiastical Law Society Day Conference: Gospel and Law in Theological Education

Aspects of Burial and Exhumation

This article considers a number of legal questions surrounding burial and exhumation. Based on an extensive paper given at the Ecclesiastical Law Society's conference in 2015, it builds on previous work by the author in this area and examines the changes in the law brought about by recent case law.

Is There a Right to Be ‘Free from’ Religion or Belief at Strasbourg?

The theme of the Ecclesiastical Law Society's 2016 Day Conference, ‘Freedom of/from religion’, reflects the growing interest in the idea that, in addition to a right to freedom of religion, there is a right to ‘freedom from’ religion. In recent years, there has been a trend towards increased use of the language of freedom from religion in academic literature and in material produced by practitioners, organisations and activists in discussions of the right to freedom of thought, conscience and religion.

The Educational Work of the Ecclesiastical Law Society

The Ecclesiastical Law Society (ELS) is a charity whose object is ‘to promote education in ecclesiastical law for the benefit of the public, including in particular the clergy and laity of the Church of England’. The ELS Committee has recently begun a review of this part of the society's work and this piece is a part of that review. This article seeks to set out what is currently happening and to solicit views on how our education work could be developed. The current education function may be described under three headings.

Ecclesiastical Law Society Residential Conference

Ecclesiastical Law Society Residential Conference

Vatican II: Some Ecumenical Reflections on the 2012 Lyndwood Lecture

The biennial Lyndwood Lectures are a significant ecumenical joint commitment by the Canon Law Society of Great Britain and Ireland and the Ecclesiastical Law Society. The Canon Law Society, as host, selected Professor Norman Tanner SJ to deliver the 2012 lecture1 and as is customary it fell to me, as chairman of the guest society, to conclude the event with comment and thanks.

The Study of Law and Religion in the United States: An Interim Report

The study of law and religion has exploded around the world. This article, prepared in celebration of the silver jubilee of the Ecclesiastical Law Society, traces the development of law and religion study in the United States. Despite its long tradition of strict separation of Church and state, and despite its long allegiance to legal positivism and intellectual secularisation, the United States has emerged as a world leader of the new interdisciplinary field of law and religion. Hundreds of American scholars, from different confessions and professions, are now at work in this field, and two dozen major research centres and journals have been established at American law schools. After canvassing some of the main themes and trends in American law and religion scholarship today, this article concludes with a brief reflection on some of the main challenges before Christian scholars who work in the field of ecclesiastical law.1

Ecclesiastical Law Society Silver Jubilee Conference

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An Appreciation of the Ecclesiastical Law Society on the Twenty-fifth Anniversary of its Foundation

An Appreciation of the Ecclesiastical Law Society on the Twenty-fifth Anniversary of its Foundation

The Genesis of the Society: Kemp, Moore, Routledge et al

In recognition of the Silver Jubilee of the Ecclesiastical Law Society and this Journal, the Comment section in this issue is devoted to some personal reminiscences and reflections from two individuals who were very much involved at the time, and who have subsequently made their own distinctive contribution to the Society and the Journal respectively: Bishop Christopher Hill, the current chairman, and Michael Goodman, founder editor of this Journal.