Comprehensive Unity: The No Anglican Covenant Blog

Wednesday, November 17, 2010

Does the Anglican Covenant really mean what it says?

by Canon Alan Perry

The No Anglican Covenant Coalition has been saying that we are concerned about its implications for the governance, autonomy and constitution and canons of the Provinces. Proponents have responded, at times rather pointedly, that the Covenant does not imply any change to the Constitution or Canons of any Province. Backing up their claim, there it is in the Covenant text itself, at section 4.1.3 which states, in part.

... mutual commitment does not represent submission to any external ecclesiastical jurisdiction. Nothing in this Covenant of itself shall be deemed to alter any provision of the Constitution and Canons of any Church of the Communion, or to limit its autonomy of governance...

But, to ask two pointed questions:

What does that mean?

Can it mean what it seems to say?

To get at that question, I should like to begin by stepping back to look at what constitutes ecclesiastical legislation. Usually, when we speak of Canon Law most people assume that it refers to the Constitution and Canons of a given jurisdiction, and little else. It does refer to these, obviously. But ecclesiastical law also includes a variety of other instruments, including (but not limited to):
  • Acts of Synod,
  • episcopal directives,
  • Acts of Parliament (or equivalent),
  • Measures (in the Church of England).

Acts of Synod are particularly relevant in this discussion, because every motion adopted by a Synod is an Act of Synod, and is thus ecclesiastical law, whether that law is as simple as adopting the minutes of a previous session, or agreeing to the ordination of women as priests. (Canada did this by a simple Act of Synod, and not a change to the Canons.)

It has been suggested that adoption of the Covenant can be done by adopting a Canon, or by an Act of Synod. Obviously, in either case, it will create ecclesiastical law.

We might understand the Covenant as a form of international law, like a treaty. When a country signs a treaty - say to ban land mines - that treaty becomes part of the country's law. So, to continue the example, it becomes illegal for the country to deploy landmines. So it is with the commitments made under the Covenant. They become part of the ecclesiastical law of the Province signing it.

So, even if the Act of Synod adopting the Covenant does not in and of itself amend any other Act of Synod, Canon or provision of the Province's Constitution, it will change the ecclesiastical law of the Province.

But does it change the constitution of the Province?

Again, I would ask, what is the constitution of any Province?

We might think narrowly of the document labelled Constitution in the Province's legislation, but in fact I suggest that the Constitution of any Province may consist of more than that. In Canada (my Province) we have 35 documents called Constitution, plus a Declaration of Principles at the General Synod level, which in fact is higher than the Constitution.

In addition there is a panoply of civil legislation which also governs us, and which might be understood in a sense to be part of the Constitution. And we also have constitutional conventions, established patterns of how we do things which are not necessarily written down.

In the disestablished Church of Ireland and Church in Wales, the Acts of Parliament disestablishing these Provinces can be understood to be part of their constitutions.

And what of the constitution of the Church of England? Surely it includes all the legislation still in force stretching back to the Reformation. Consider, for example, the 16th Century Act for the Submission of the Clergy, or the various Acts of Uniformity.

Adopting the Covenant will not change any of this legislation directly - but it will add new constitutional conventions, such as the convention of consulting on potentially controversial actions. (And what is a controversial action? How can any Province know in advance? But that's for another blog post.)

If the Covenant becomes part of the law of the Province, as I suggest above, than it is surely higher than other legislation, even if lower than the formal, written constitution. It is, in fact, at least quasi-constitutional in its effect.

Finally, there is the matter of implementation of the Covenant. In 2001, the Anglican Church of Canada, adopted the Waterloo Declaration, establishing Full Communion with the Evangelical Lutheran Church in Canada. The next two sessions of the General Synod (2004 and 2007) spent time adopting amendments to our constitution and canons to implement certain aspects of the Declaration, specifically to allow for transfer of Lutheran clergy into Anglican jurisdictions.

It is not clear yet what amendments to current legislation, or what new legislation might be required to give effect to the Covenant should any given Province choose to adopt it. The Anglican Church of Canada is in the process of studying just that question. It is also looking at what, if any, civil effects might arise from the Covenant. In the haste to design and implement a Covenant, these important questions have been ignored to date.

So, in summary, the Covenant and its supporters say it doesn't change anything in the constitution of canons of any Province. But its adoption would in fact add to the constitutional and canonical framework that governs a Province, and its full implementation might require further amendments to existing ecclesiastical legislation.

Section 4.1.3 cannot truly mean what it says.

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Blogger Lionel Deimel said...

As you suggest, implications of the Covenant may vary by church.

Article VI of the U.S. Constitution says: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” To my knowledge, The Episcopal Church constitution does not have an analogous provision, so it is not clear to me that the Covenant would have supreme standing in the church, absent specific canonical provisions.

In any case, I do believe that Paragraph 4.1.3 is, at best, disingenuous. I have just written on this topic myself, and you can read my take here.

November 17, 2010 at 9:59 PM  
Blogger June Butler said...

Nothing in this Covenant of itself shall be deemed to alter....

Just because they say it, doesn't make it true. You can say over and over that up is down and black is white, but that doesn't make the statements true.

November 17, 2010 at 11:31 PM  
Blogger Marshall Scott said...

You know, Lionel, your raise a question that is interesting for me as a Deputy to General Convention. If we were to adopt the Covenant in General Convention, we would commit ourselves to a specific (if not necessarily clear) procedure in responding when we discern in another "Covenenting Church" an action that we think threatens communion, or (as seems more likely) a "Covenanting Church" see the same from us. This would seem to me parallel to the procedures in Canons Title IV (the "disciplinary canons"), as a set of procedures for resolving certain issues. So, would the Covenant be "canonical," even if not literally added to Canon? Would that effect then force resolutions that would either change Constitution or Canons, or so interpret existing Constitution or Canons in a new way? It seems a valid question at what point a "canonical effect" is effecting a change in Canons.

November 19, 2010 at 9:22 PM  

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