Submitted by Tim Bradshaw
EQUITY FREEING THE ANGLICAN COMMUNION
These very brief paragraphs concern the procedures and principles relevant to the Anglican Communion and its legal constitution. In particular it is suggested that the strand of Equity law, very characteristic of the English, American and Commonwealth legal traditions, should be considered as an important and very appropriate model for use by the Anglican Communion. It is appropriate because the Anglican Communion breathes the practical jurisprudential air of the English legal traditions, rather than the codified ‘Continental’ legal tradition and the entail of strict, centralised statute law, the Roman Law rooted in the Institutes of Justinian, revisited by the Code Napoleon and now the EU. But it is also appropriate, ecclesiologically, since the Anglican Communion deliberately resisted the model of the post 1870 Roman Catholic Church, with a basis in centralised canonical statute law, echoing Justinian and, for example, the imperial rescripts and senatus consulta, promulgating authoritative, detailed legal decisions out to far flung corners of Empire and then Church. The English legal tradition, well known for its case law and precedent, resembles the river rather than the canal, and this should gladly be regarded as utterly apt for the Anglican Communion, theologically, historically, and jurisprudentially.
The Anglican Communion found itself in being naturally, and resisted the Roman model of global black-letter law as a basis and form. It existed quite happily as a kind of family of Christians across the globe, far more like the Eastern Orthodox family than the Roman type of legally established corporation, after 1870. The Anglican Communion felt no need for a codex juris, it existed as a family and so behaved as such. We must agree with the judgement of Professor Norman Doe, therefore, when he affirms at the outset of his paper to the Lambeth Commission that ‘there are principles of canon law common to the Churches within the Anglican Communion’, ‘principles’ being the key word. And we can extrapolate that there are principles, rather than black-letter canonical laws, governing the Anglican Communion itself. Turning to the end of the other official legal paper supplied to the Commission, by Dr John Rees the Provincial Registrar of Canterbury, we can all approve of his final sentence pointing us to ‘self-discipline’ and ‘a trust which is as yet only imperfectly manifested both interprovincially and within separated provinces of the Anglican Communion’, principles arising not from a codex juris but from the monastic ‘rule’ of Benedict, a pastoral rather than legal document hence in tune with the Anglican way.
Given that the Anglican Communion wisely did not opt to ape the Roman model of canon law and that it managed for a century or so without a written rule book at all, we are pointed to principles and to natural justice, in fact to the tradition of Equity and fairness in law characteristic of English speaking lands, as the primary model for Church order globally. The law of Equity grew up centuries ago in England by way of providing fairness when statute law, rigidly applied, could lead to injustice. Equity, is, as the Encylopaedia Britannica puts it:
Justice according to fairness, especially as distinguished from mechanical application of rules under common law. Courts of equity, also called chancery courts, arose in England in the 14th Century in response to the increasingly strict rules of proof and other requirements of the courts of law. Equity provided remedies not available under the old writ system. Often these remedies involved something other than damages, such as specific performance of contractual obligations, enforcement of trust, restitution of goods wrongfully acquired, imposition of an injunction, or the correction and cancellation of false or misleading documents. The equity courts eventually established their own precedents, rules and doctrines and began to rival the courts in power. The two systems were united in 1873. Courts of equity also developed early in the U.S history, but by the early 20th Century most jurisdictions had combined them with courts of law into a single system. Modern courts apply both legal and equitable principles and offer both legal and equitable relief.
The English-speaking legal tradition embodies not only the characteristic common law of building up precedent interwoven with Parliamentary statute law, but also this equitable tradition enabling remedies when the letter of the law fails. In the case of the UK, of course, we might point to the current constitution which is famously unwritten to a large extent, and to the phenomenon of EU law, directed from ‘Brussels’, into British law and interweaving with it. For the legal traditions rooted in the English, rather than Roman, tradition, the law is more like an organism developing than an absolute written code, serving a family or commonwealth rather than a strictly legally established corporation. And the way of the Anglican Communion is developing as a family. As both legal papers indicate, the Communion does clearly have its ‘instruments’, which can, do and have expressed their intention on various contentious matters. The question apparently being discussed by the Lambeth Commission now is how these instruments and principles impact on the acts of ECUSA in its attempt to consecrate Gene Robinson as a bishop to be recognised globally in the apostolic succession of the Church.
Here I would presume to take issue with Dr John Rees’s paper and its repeated basic assertion that because there are no formal statutes, laws or canons in a codex of the Anglican Communion to take sanctions against member Churches which take actions in violation of clear Lambeth Conference Resolutions, therefore there is no ‘law’ applicable to such situations. This argument depends upon a strictly ‘statute law’ view of the way the Anglican Communion orders itself. This presupposition however is weak and certainly not necessary. In fact, the Anglican Communion works on ‘principles’ akin to a family rather than a nation or business corporation established by statute based law.
When we turn to the principles of ‘Equity’, that is fairness and justice, we find considerable help, and indeed help which relates directly to Christian principle and practice. We find ‘trust’ and ‘good faith’ to be central to the concerns of equity. We find the principle that a trustee cannot act in his or her own interest against that of a beneficiary which he or she serves. We find that ‘equity looks to the substance and not to the form’. We find that Equity will not allow one to profit from his own dishonesty. And in the law of charitable trusts we find that the ‘spirit and intendment’ of the trust is crucial. Such equitable principles apply admirably to the family of the Anglican Communion, and stop a perverse application or result of the letter of the law – and in particular absence of such black letter statute – preventing fairness and equity being achieved against the expressed intention of the family and its regular gatherings at Lambeth. Equitable principles act against frustration of proper remedies, and against hiding behind some kind legal mechanism to prevent fairness.
Lambeth 98 clearly yielded the mind of the global Anglican Communion on the question in dispute, notwithstanding intense argumentation. We know the mind of the family of the Anglican Communion on the ethical issue. But we also know its mind, its spirit and intendment, as to the need to develop more central control over members who choose to fly in the face of the Communion. The acceptance of the principles of the Virginia Report at Lambeth 98 makes that very clear indeed. There is a clear need for all members of the family to exercise self-discipline in this light, as the final paragraph of Dr Rees’s paper enjoins.
A particular principle of fairness and equity, surely, is that people should not be allowed to profit from the benefits of membership of the family while breaking its clearly stated resolutions and operating a way reckless to its future integrity and coherence as a body. Here we cannot but note that the Presiding Bishop of ECUSA, at the meeting of Primates prior to the ‘ consecration’ of Gene Robinson, signed the common document ‘regretting’ this act – then flew home to participate enthusiastically in that ritual act. Equity looks carefully at the behaviour of a party, its effects, and how it affects that party’s standing and status in the dispute. Principles of equity would dismiss appeals to some narrow, technical defence of such actions within the Anglican Communion, as duplicitous and undermining of simple justice. The ‘consecration’ was carried out purporting to be more than a merely local act for a merely local ministry: the claim is that this consecrates Gene Robinson as a bishop in the worldwide Anglican Communion, into the Church catholic. Hence there is real conflict, a claim to the status of a catholic bishop globally, while radically contradicting the absolutely clear mind and duly constituted resolution of that global Anglican body. There is an overwhelming equitable argument to be made here against the legality of the consecration as Anglican. My point here is that Dr John Rees’s argument, based on a lack of Anglican Communion statute, merely an argument from silence, fails to use a sufficiently wide jurisprudential lens by focusing on black-letter law alone as relevant. There are other powerful, and very appropriate, models and strands of law and remedy available.
Appeal to the absence of black-letter, codified statute law in the Anglican Communion, in other words, is inappropriate to the family, too narrow, and far from decisive in adjudicating this crisis. Far better, more authentic, and legally proper is appeal to principles of Equity in just this situation. Lambeth 98 spoke on the substantive issue of homosexual ordination. It also spoke clearly on the desirability of developing sanctions against provinces claiming the benefits of full status in the global Communion while damaging its integrity and coherence by reckless actions known to be divisive internally, and ecumenically. Claiming the benefits of the Communion, and the global recognition of that family, while acting in violation of its clear intention offends legally acknowledged principles of fairness, justice and equity. Another way of putting this might be that the Primate of ECUSA was a trustee, perhaps a ‘constructive trustee’, of the global Anglican Communion, breaching trust by acting in favour of its own local interest alone, without attending to his wider responsibilities globally, hence he forfeits his status as a global trustee along with the province he heads – that could be a very fair remedy against this inequitable behaviour, protecting the Communion and its declared intention. The primates and Archbishop of Canterbury, functioning as the board of trustees, can and should take the necessary action against the trustee who has shown ‘bad faith’ with regard to the trust.
Another aspect to this breach of equity and good faith emerges since the Eames/Lambeth Commission began its work to reach some reconciliation of the crisis, potentially fatal to the very existence of the global family, and its credibility as a global ecumenical dialogue partner. ECUSA has been pressing ahead with its own contradictory local agenda, rather than complying with the spirit of the Commission process to allow space for peace to be secured. But more than this, it has increasingly been denying clergy who disagree with its gay agenda parochial employment. Oppression violates principles of equity, and ECUSA is claiming freedoms against the global body while denying freedom of traditional faith and practice to others at home. This is now well known throughout the Communion, but my point is that it is arguably actually unlawful according to Equity, and so is more than a matter of hand-wringing and frustration of aim. Anglican Communion leaders, the Primates and the Archbishop of Canterbury, can and should act accordingly. The whole strand of the law of Equity arose from appeal to the person and office of the Lord Chancellor centuries ago, and he took action in the name of fairness and right against their frustration and contradiction on technicalities. In our case, these principles arising from the need for remedies against oppression and unfairness coincide well with the Anglican way of reasonableness and moral rectitude. ECUSA has shown no intention of seeking peace in the Anglican Communion, but has pushed on with their local agenda in flagrant violation of all proper efforts at mediation, even when they have been very generously treated. They have shown no ‘good faith’ throughout this crisis, and ‘one who comes to equity must come with clean hands’.
The kind of remedies developed by the court of Chancery are exemplified by injunction and estoppel, preventing parties from committing inequities that might take place ‘legally’. This is precisely what might be expected in such claims against unfairness and injustice, and these are the sorts of principles and remedies to which the Communion must look legally. The contested ‘consecration’ was purportedly into the Church catholic, not a very local exception, and hence needs adhesion to the Anglican Communion ‘College’ of bishops to make this remotely credible. Given the inequitable behaviour of ECUSA in regard to the Anglican Communion and its duly declared mind, spirit and intent, some version of estoppel or injunction should apply. Given that the Anglican College of bishops does not claim to be ‘the’ sole college worldwide, but part of such a catholic college, the estoppel or injunction equivalent applies a fortiori, since the Roman Catholic and Eastern Orthodox episcopates are wholly opposed to homosexual practice and to ordaining or consecrating people avowedly pursuing such a lifestyle. It is no counter argument to say that these other two Churches deny the Anglican episcopate on other grounds anyway – this new act puts new and deeper difficulties in the way of ecumenical reconciliation, and so again is not in good faith as regards the world-wide Anglican Communion.
In conclusion, my point is that there always was a legal resource of great importance that could have untied the hands of the Primates in dealing with this crisis and prevented frustration of the global Communion’s intention, in the absence of some code of canon law in the Anglican Communion. The principles and remedies of Equity are very appropriate for the Anglican Communion, and should be applied. The Communion, more like a family than a legal corporation, has the ‘instruments’ already in place in the Primates and Archbishop of Canterbury, a personal and equitable mode of flexible remedy. These principles prima facie call for unreasonable behaviour, reckless to the very existence of the Communion globally, to be dealt with calmly but firmly, and with total confidence in its existing rights to act for the good of the family. An equivalent to an injunction should be served on the offending provinces, and if not complied with will result in a status equivalent to a ‘contempt of court’ and so self-exclusion from the benefit of owning the identity conferred by the Anglican Communion, until that contempt is duly purged and respect for the family restored. It is arguable that such action should already have been taken by the Primates, as trustees, in the interest of the continued existence of the body, or family, for which they hold a global responsibility and on which they all depend for world-wide catholic credibility. It is certainly a strong question to ask, in Equity, why such action is still being frustrated and delayed when it could so easily and justly be remedied by a declaration by those responsible for the continuing existence of the Communion. Equity seems to require a swift remedy, delay compounding the crisis and the inequity being rewarded.
 The Commission is evidently aware of this, witness the exchange of letters between Archbishops Gomez and Eames, respectively May 7th and 14th this year. Archbishop Eames’ reply contained the phrase ‘ homosexual persons’, an apparent break with the resolution of Lambeth 98 which specifically cautioned against this kind of ontologising of the homosexual condition into personal identity. The final paragraph of the report on Human Sexuality, pages 94-95, reads:
‘There can be no description of human reality. in general or in particular. out- side the reality of Christ. We must be on guard, therefore, against constructing any other ground for our identities than the redeemed humanity given us in him. Those who understand themselves as homosexuals, no more and no less than those who do not, are liable to false understandings based on personal or family histories, emotional dispositions, social settings and solidarities formed by common experiences or ambitions. Our sexual affections can no more define who we are than can our class, race or nationality. At the deepest ontological level. therefore, there is no such thing as "a" homosexual or "a" heterosexual; there are human beings, male and female, called to redeemed. humanity in Christ, endowed with a complex variety of emotional potentialities and threatened by a complex variety of forms of alienation.’
It is to be hoped that this vital point in the whole debate is not being missed.
Tim Bradshaw, Regent’s Park College, Oxford 5th July 04