Response to the Lawyer/Bishops

Response to

The Constitutional Crisis, 2007

A Statement to the House of Bishops, the Archbishop of Canterbury, and Honored Visitors

Six retired bishops of the house of bishops of the Episcopal Church have produced a lengthy document for the crucial upcoming meeting in New Orleans where the Archbishop of Canterbury and other international representatives will meet with the American house of bishops to hear their response to challenges presented to the American church by the Anglican Primates meeting in Tanzania.

The paper is presented in the form of a legal brief. I have read to date the summary and offer these initial reactions. The premise of the paper is that persons with legal training are practiced in identifying correctly according to a proven methodology the active issues in a dispute. The argument is that if the issues are incorrectly identified then it is not possible to arrive at a fair and just adjudication of issues. The six present themselves as uniquely trained to identify “the most important factor in any scrutiny. . .together with. . . the elimination of wrong, irrelevant, or improperly formulated issues. If the issues are identified correctly, then all else can and should follow to the proper result” (page 3). The authors identify the issue as the issue of the violation of “an unwritten and unenforceable but clearly recognized anciently respected Anglican Constitution.” (page 8). They propose that the acceptance of an Anglican Covenant would be an unwarranted constitutional revolution.

The authors are proposing the methodology of advocates in the Anglo-Saxon tradition of jurisprudence as the preferred means for adjudicating the disputes in the Anglican Communion. I will be interested to hear what other lawyers who are churchman make of this assertion. I believe that this methodology is a method which has been developed with the assumption that the primary business of the courts is to apply existing statues in a way that is fair and equitable. In other words, to try the case in terms of the laws that apply. It must be said here that aims of such a method are very limited. This is a system and methodology that is designed to restrain crime and punish wrong doing. Reconciliation and healing are not in view here and certainly not in view is a vision of building up the one body of Christ. In response to the assertion that the authors are uniquely equipped to address the crisis in the Anglican world because of their training, I ask “but does this method really fit and does the method invoked have among its aims properly theological and properly ecclesiological aims?” Can the method of the civil law developed to work within a well-defined system of statues and precedents really be the answer to a profound theological and ecclesiological crisis? Is not a more likely analogy the analogy of ecumenical negotiation around agreed statements of faith, order and mission such as the National Council of Churches document on Baptism, Eucharist and Ministry which the authors oddly invoke to bolster their case. I say oddly because the whole purpose of this ecumenical document was to be a prelude to growing ecumenical covenant.

The premise of the brief by these lawyers is that the method of legal argument which is appropriate to a system of settled statutes and case law is the best method to adjudicate what they identify as a constitutional crisis over a constitution that is unwritten and unenforceable. It appears to this non-lawyer that their method has quickly led them to a problem for which their method is in the nature of the case inadequate. The phrase “an unwritten and unenforceable but clearly recognized and anciently respected Anglican Constitution” seems on first reading an oxymoron. It is an enforceable constitution in the American case and an unwritten but enforceable constitution in the British case (nevertheless discernable through the tradition of common law) that makes the jurisprudential method the six bishops propose workable in its normal context. That the Anglican Communion is not able to enforce the most minimal communal discipline is exactly the crisis in front of us. To propose as a solution something that is unenforceable does not appear as a positive contribution to the crisis. Would not a status quo which enables radical and communion-breaking provincial autonomy be a kind of enforcement? The conclusion of the paper seems to contradict the method that is being invoked.

As the six bishops proceed with their argument they become more and more Orwellian. Traditionalists are “constitutional revolutionaries” and those who propose radical innovations in faith and morals and are breaking with the witness of the majority of the world’s Christians are somehow in the tradition of Vatican II and part of a coming “Ecumenical Reformation” and wish “to leave Anglicanism the way it is.” The tone of the paper is high-handed in the extreme and the actors are identified in a stereotypical way as conservatives who “unapologetically seek the utter defeat of the other” and want to “undo the use of reason in the interpretation of scripture” and who are part of a growing “fundamentalism” as opposed to those who “have rediscovered the church’s ancient baptismal theology” and seek to reform the church according to this theology and in a way that will finally make the church relevant to the society and culture it serves. This kind of rhetoric is very disappointing. One discipline that ought to prevail in these attempts at dialogue is the discipline to describe the position of the other side in terms that they can accept. To accuse your opponent of rejecting the role of reason in biblical interpretation while all the while you refuse to engage his careful exegetical arguments (for example N.T. Wright or Robert Gagnon or on the purely scientific front the NARTH researchers) is simply false witness.

The bishops propose as ingredients in the unwritten Anglican Constitution seven “interlocking traditions concerning Anglican Comprehensiveness, the Via Media and Lex Orandi Lex Credendi.” (page 11-12) They are listed below with my comments.

(1) The interlocking traditions concerning Anglican Comprehensiveness, the Via Media, and Lex Orandi Lex Credendi.

If the Anglican Communion reduces its comprehensiveness to a conforming set of confessional doctrines, and discounts the uniting force of worship, it will be a different church.

My comment: Posing the issue in this way represents a simplistic and reductionistic understanding of the relationship between doctrine and worship. The esteemed liturgist Geoffrey Wainwright has documented the complex relationship between the development of doctrine and the development of liturgy in his book Doxology. Sometimes liturgy governs the development of doctrine and sometimes doctrine liturgy. The original BCP is a revision of the received tradition along doctrinal lines. Famously Urban Holmes the former dean at Sewanee confessed that in his role in liturgical revision in the work on the 1979 American BCP his aim was to replace the “Tudor God.” This history of a church that has been held together by worship and not doctrine is an invented history that opposes doctrine and worship in ways that are not supportable either theologically or in terms of the explicit and documented aims of the Episcopal Church’s own councils.

(2) The authority of Scripture, Reason, and Tradition. If the Anglican Communion decides to read scripture literally or impose conformity to a single interpretation without attempting objective regard for critical scholarship, it will be a different church.

My comment: The charge of having no objective regard for critical scholarship fits far better the revisors in this dispute. There is very little dispute about what the texts in question say even using the best historical and critical tools. The dispute is over application not interpretation. The idea that Anglicans have been free to read the Bible in the way that for instance Southern Baptists do with the “soul sufficiency” of the individual reader being the trump in all disputes is pure invention. The quoting of Lambeth statements on biblical interpretation is simply bizarre.

(3) Episcopal Oversight. If bishops are increasingly used in the church as a sign of division, or of conformity, rather than a sign of unity, it will be a different church.

My comment: How can meaningful unity be divorced from agreement in the faith? Is not the mission of the bishops to steward the apostolic doctrine, to keep us united to the rest of the Christian world and to the tradition? The bishop is the one who says, “ That is not what old Polycarp told me that St. John said.” Gene Robinson is exactly a sign both of division and enforced conformity for by his office he excommunicates those who in conscience cannot sign-on to the new theology.

(4) Baptismal Bonds and Community as Communion. If the Anglican Communion decides to allow Christians to refuse to worship and share communion with fellow baptized Christians, including collegial bishops, it will be a different church.

My comment: This begs the question of what it means to be baptized and to be in communion. It presents a rather magical view of the sacrament. The water and the ceremony appear enough without any regard to the confession of faith that should attend membership in the body of Christ. The idea that Anglicanism is doctrinally indifferent is gross revisionist history. An Anglican Church which viewed the sacraments as proposed here would be a different church.

(5) Jurisdiction and the Diocese as the basic and local unit of the Church in relation to congregations, the Province, and the Anglican Communion. If the Anglican Communion creates jurisdictions that cross provincial and diocesan boundaries in order to satisfy those within a given jurisdiction who disagree with the episcopal authority and the majority decisions of the duly constituted decision-making bodies of that jurisdiction,

or if it allows extra-jurisdictional episcopal authority to be exercised at personal whim, it will be a different church.

My comment: This is a pertinent observation. It begs the question of how theological lawlessness and whimsical exercise of episcopal authority by sitting bishops of TEC have provoked the mess we find ourselves in. However, bishops are bishops of the whole church with inter-Anglican and ecumenical responsibilities. The ethos of provincial autonomy on basic issues of faith and morals of TEC is not according to Anglican ethos. If the set up of competing jurisdictions in response to the current pastoral emergency cannot be resolved into a coherent Anglican Communion structure, the agents of reform will have likewise abandoned something crucial to Anglican identity.

(6) Provincial Autonomy. If the Anglican Communion creates a Communion-wide teaching office (magisterium) requiring and perhaps enforcing doctrinal conformity without regard to cultural and experiential differences among provinces, enabling it to overrule decisions duly made by a province, it will be a different church.

My comment: The lack of recognized magisterial structures is one of the main ingredients in the continuing fracture of the Reformation Churches. Anglicanism has had a workable magesterium in its prayer books. As the prayer books of the member churches have begun to diverge the need for a more well-defined teaching office has emerged. The proposed Anglican Covenant includes a vision of a synodical teaching office with checks and balances between the provinces and the instruments of communion. There is always some sort of magesterium at work. General Convention makes unapologetic claims for itself as the ultimate source of teaching. If we want to be truly members of a world wide church this is not enough. It is really the vision of extreme provincial authority in fundamental matters of faith and doctrine that is the innovation.

(7) The Mission of the Church, especially in terms of justice. If Anglicanism separates love of God from love of neighbor, separates spirituality, religious observance, and doctrinal adherence from the mission for justice, and separates vocation to creation from vocation to kingdom, it will be a different church.

My comment: There is an awful lot of code here for a revisionist theological agenda but at the least this argument goes in both directions. Understanding the mission of the church as primarily a search for justice separated from questions of doctrinal truth, spirituality and religious observation would clearly be the invention of a new religion that could claim no Anglican provenance.

6 thoughts on “Response to the Lawyer/Bishops

  1. A clarifying comment: As I read over the post I am not sure that my point about the applicability of the legal method the bishops propose is entirely clear. I want to point out that their confidence in a method which identifies issues is based on a well defined system in which “issues” mean something very particular, namely things over which the court has jurisdiction, actors and witnesses and evidence etc all have very well defined and within that system technical meanings. The legal system must be taken for granted, it is not on trial in a normal court of law. Their are constitutional courts for that. The lawyers are trying to use a method that works where the playing field is well defined in a crisis where the nature and shape of the playing field is exactly under dispute. A process which depends on well defined first principles cannot help when the first principles are under attack. Their method is not guaranteed to help them define the pertinent issues in such a circumstance. They end up defining the issue as an attempt to replace an unwritten constitution with a written one. Their unwritten and unenforcable constitution could never produce a circumstance in which careful identification of issues could lead to anything but unending wrangling since there is no authority that can bring disputes to adjudication. The kind of process they propose is not possible in a context where there is no ultimate adjudicating authority. Putting into place something like the Anglican Covenant would make a rational and dependable process for adjudicating disputes between provinces possible. The bishop’s proposal is a brief for continuing anarchy.

  2. Pingback: Covenant
  3. Thank you for this insightful analysis.

    Two additional comments I think need to be made about the fundamental premises of this silly and transparent piece of tendentiousness:

    1) If we’re looking at the Baptismal theology of the early Church, do we have any evidence that the errant soul discussed in 1 Cor 5 was not baptized? What does St. Paul recommend to the Corinthian church here, and why do these ambulance-chasers in purple not believe it applies to the current situation?

    2) If in fact this situation amounts to a Constitutional crisis in the Anglican Communion, the closest historical analogy that presents itself is the case of King John’s flagrant abuse of his position as sovereign, contrary to long-established and well-understood but unwritten traditional principles. This abuse became so blatant that at length John’s fellow feudal aristocrats banded together and forced him to sign the Magna Carta, which was at the time revolutionary only in that it made explicit hitherto unwritten constraints on the King and provided for some mechanism of enforcing them.

    Like the “bonds of affection” uniting the Anglican Communion, the limits on the power of the King did not need to be formally specified until a self-interested and nihilistic power ignored them. Or did the nobles who prepared the Magna Carta “misperceive the issues”?

  4. Dr. Harding, Thank you for providing more clarity on this strange document. It is indeed a brief for continued chaos and anarchy. The determination of many TEC bishops to prolong the crisis is reinforced by the success of this strategy in the past. The longer they can keep people focused on the agenda of personal license as civil rights, the more ground they hope to gain. You are exactly right to counter this by speaking plainly. The Christian Gospel is shown to be counter to American individualism and liberalism and TEC is shown to be at the forefront of materialism, nihilism and the idolatry of self.

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