December 27, 2004

More on ‘What Touches All’

The authors of the Windsor Report misapply the legal principle, “What touches all must be approved by all.” (This law was part of Justinian’s Code, dealing originally with water and property rights, but later broadened considerably in its scope of application. It made a rather late appearance in the canon law via the good graces of Gratian. It is in the present Roman Catholic Code of Canon Law at §119.3).

The WR seeks to apply this law against the “innovation” of a church consecrating as a bishop a man who lives in a same-gender relationship. As I have already noted, the act of consecration does not “touch all” in that no one’s rights are abridged or limited by this consecration, and it is within the rights and powers of any other diocese or province to disallow such a bishop functioning as such outside his own diocese. In addition, strictly speaking, this consecration was not innovative. The only novelty in the presenting case was that it was done openly and advisedly.

Bartolome de las Casas, in his fight to defend the native people of the Americas against Spanish enslavement, drew upon the Justinian legal principle in their defense. Here is a relevant comment:

Las Casas wrote, in a famous phrase, “All the races of humankind are one.” And so, arguing from this conviction, he claimed human rights for the Indians, a right to liberty, a right to own property, a right of self-defense, a right to form their own governments. Las Casas eventually wrote a whole shelf of books in defense of the Indians, but his underlying thought is expressed in just one line from one of them: “They are our brothers, and Christ died for them.” But, although Las Casas wrote out of this deep religious commitment, he also saw the need to defend Indian rights in terms of reason and law that could have the widest appeal. Indeed, his work is especially interesting in the present context because he appealed overtly and frequently to the juridical tradition that undergirded the earlier development of natural rights theories. To give just one example, he took up an old maxim of the medieval jurists—Quod omnes tangit (“What touches all is to be approved by all”)—and used it to prove that Spanish rule in America could be legitimate only if the Indians consented to it, for the matter certainly “touched” them. The quirk in Las Casas’ argument was that he applied it to each individual Indian. Where the natural right to liberty was concerned, the consent of a majority could not prejudice the rights of minority individuals withholding consent. The claim of the minority dissenters should prevail.... (from Brian Tierney, “The Idea of Natural Rights,” NWU Journal of International Human Rights, April 2004, ¶28)

So, by analogy, efforts at pan-Anglican restriction on the rights of American (or any) dioceses to ordain the persons of their choosing can only be legitimate if all of the dioceses concerned consent to the restriction. Note here I am not talking of any spurious “right to be ordained” but of the right of the competent church authorities to ordain persons of their choosing.

I would also point out that the lack of inclusion of the voices of those most affected by the decisions of Lambeth (most particularly Bishop Robinson himself) represents a serious breach of this principle as well, I fear having crossed over from the merely illegal to the immoral.

On the other hand, a proper application of this legal principle, mistakenly invoked by the WR in favor of the majority, protects and defends the minority actions of New Hampshire and the Episcopal Church in the face of any surmised superior authority. As the Lambeth Conference was neither legitimately assembled as a legislative body, nor acting unanimously in a way that protected the rights of all individual bishops, its actions can only be taken as advisory or recommendatory.


December 20, 2004

What Touches All

The Windsor Report refers to the notion “what touches all must be decided by all” as an ancient canonical principle (¶ 51), although I haven’t been able to locate the ancient canon referred to. In the WR Proposed Covenant, ¶ 20, “decided” becomes “approved” -- which more accurately reflects the ancient Roman private law, “Quod omnes tangit debet ab omnibus approbari.” (Code V,59,5,2). The point of this law is that in any decision of a body that concerns each member of the body in terms of individual rights, as opposed to the actions and rights of the body as a whole, no decision can be made without the universal approval of all. A single opponent to the action is enough to defeat it, since the action might be held to abridge a fundamental right appertaining to the individual. We are talking about approval, not decision, and all means all.

This is made clear in Johannes Althusius’ Politics, when he states:

“In those matters that are to be done necessarily by the collegium, a majority is certainly sufficient, provided that in making decisions two-thirds of the collegium is present. The reason is that what is common to everyone is not my private concern alone.... However, in matters common to all one by one, or pertaining to colleagues as individuals, a majority does not prevail. In this case, ‘what touches all ought also to be approved by all’. Even one person is able to object. The reason is that in this case what is common to everyone is also my private concern. In these things that are merely voluntary nothing ought to be done unless all consent, not separately and at different times, but corporately and unanimously.” (Chapter IV: The Collegium)

Thus the 1998 Lambeth Conference Resolution 1.10, must be held as a recommendation concerning the appropriateness of ordaining persons living in same-gender unions. (The precise wording of the resolution, in any case, is “cannot advise,” so the Conference seems to understand it cannot legislate this matter). This resolution cannot be held to be binding upon all provinces and dioceses without their explicit consent, since it would restrict a right that belongs only to those entities. Ordination, as the ancient canons most definitely do point out (see Chalcedon VI, for example), while having global implications, is by its very nature local in its institution, and the right to ordain is strictly allowed only to those canonically authorized to do so in a particular place, as part of their “ordinary jurisdiction.” So any restriction on ordination must be assented to by all with the right to ordain, which is to say, all bishops, not simply a majority of them, since it constitutes an abridgement of a right or power that resides at the diocesan level for the ordination of priests and deacons, and at the provincial level for the ordination of bishops. This is subsidiarity at work: ordinations are not undertaken at the Communion level, but only at the level of diocese or province.

Thus, claims of the Primates and others notwithstanding, the Diocese of New Hampshire in electing Gene Robinson, and the Episcopal Church in approving his ordination, did not “tear” any “fabric” other than one woven from whole cloth.


December 18, 2004

Questions for Reasserters

Questons for Reasserters
See the excellent questions posed by the Salty Vicar. Good not only for “reasserters” but for anyone who takes the scripture seriously, which includes most “reassesors” as well, and maybe even more, since they assess as well as assert. The questions include:

  • How do you think the role of blood in the ancient world has changed from our understanding of blood?

  • How do you determine the criteria for interpreting scripture allegorically or literally?

  • How do you think property and sexuality are related to each other in scripture and today? Is there any difference?

  • How you might convince a non-religious person, without using religious language, that the Bible is reliable? How is it reliable?

  • And many more thought-provokers.
    Well done Salty!

    December 17, 2004

    Baptism, Communion / Laity and Lambeth

    In the discussion of baptism before communion now before us, let’s not forget that for a long time confirmation was required in order to receive communion in the Episcopal Church. How that policy changed serves to illustrate the autonomy of provinces, in contrast with the role of Lambeth as a place for discussion rather than decision.

    The order of receiving sacraments was altered in England long prior to the Reformation by Archbishop Peckham, who required confirmation of those who wished to be communicants. By a process of inheritance, the various national churches of the Anglican Communion retained this limitation (with some minor alteration to provide for those “ready and desirous” of Confirmation but unable to be confirmed due to a scarcity of bishops).

    The peculiar practice of confirmed communion came into question in the last century, however, as interreligious dialogue and liturgical renewal reminded Anglicans worldwide of the anomalous character of this hallowed tradition, and discussion began in earnest to remove the “confirmation bar.” The Lambeth Conference of 1948, however, felt that such a change was “not desirable” and called for the retention of the traditional (for Anglicans, anyway) order of Baptism, Confirmation, and admission to Holy Communion. (Paragraph 103, section V.B.) By 1968, the Lambeth Conference was recommending that provinces “experiment” with permitting those baptized but not confirmed to receive communion. (Resolution 25). The 1978 Conference apparently lost interest in the subject, due to the more immediate concerns raised by the emergence of the ordination of women. In the meantime, the Episcopal Church had set in motion a complete repeal of the “confirmation ban” — not as an “experiment” but as a new practice. However, in 1988 (Res. 69) the Lambeth Conference was still not of one mind, and chose to refer the issue to the ACC.

    The Disappearing Laity

    One of the vexed questions before us is the authority of Lambeth itself. The Lambeth Conference itself seems to forget, and then recall, from time to time, its own nature as a consultative conference, and the important role the Laity (and for that matter, the Clergy) ought to play in forming Anglican tradition and theology.

    Over the last decades there has been a focus upon the Bishops (note increased number of meetings of the House of Bishops in our own church) and Primates. I understand that these domestic meetings were in part efforts to “keep the peace” by bringing bishops of divergent opinion face to face in the hopes they would find it easier to get along if they spent more time in dialogue. I think this is an excellent idea, but I fear a by-product of these meetings is the feeling among those gathered that these episcopal sessions have greater authority than either canon or tradition warrants.

    This shift is illustrated in two Lambeth resolutions from ten years apart. In 1968, Lambeth stated “The Conference recommends that no major issue in the life of the Church should be decided without the full participation of the laity in discussion and in decision.” (Resolution 24)

    Yet in 1978 (Resolution 11) Lambeth said, “The Conference advises member Churches not to take action regarding issues which are of concern to the whole Anglican Communion without consultation with a Lambeth Conference or with the episcopate through the Primates Committee, and requests the primates to initiate a study of the nature of authority within the Anglican Communion.”

    Now as long as “consultation” isn’t interpreted as “seeking permission” this is fine. In fact, on the matter of women’s ordination, the Conference was “consulted” and the Primates “studied” the matter — but neither the consultation nor the study prevented (or was thought capable of preventing) the individual provinces from moving forward as they saw fit (to accept or reject this development).

    A note on patience...

    Patience does not imply inaction, nor is it reasonable to require absolute unanimity before a change is made in a given practice. (This is simply the way the church works, historically. As Newman pointed out many years ago in his essay on the development of doctrine, the Vincentian Canon is a kind of “legal fiction” since there have always been at least some who have rejected even the seemingly most basic credenda).

    For us Anglicans, the dynamic of authority in the communion has been and is best worked out when each unit of the communion (with laity, clergy and bishops working together or in their separate orders) exercises its decision-making capability for the matters that it is competent (in accord with canon and tradition) to decide, even if those decisions may lead to a situation in which all things are not “in all places the same.” This is particularly true in questions of “rites and ceremonies” — which includes (and was believed by the framers of Anglicanism’s foundation documents to include) marriage and ordination.


    December 11, 2004

    The Authority of Scripture

    Who's in charge: Judging the Scriptures

    Tobias S. Haller BSG

    The question of Scriptural versus Ecclesiastical authority, while full of rich and complex nuances, is most certainly not a question of which came first, chicken or egg. While the Hebrew Scriptures clearly precede the foundation of the Christian church, the Holy Bible as we know it was assembled and authorized by that very church. The question of how far the church is limited by Scripture, and how much authority the church has over it, is laid out, for Anglicans, in the Articles of Religion, to which I will return in a moment.

    For the present, let me second Fr. Gerald Keucher's observation that there is no reading without interpretation. This is not a novel premise of postmodernism; it is something of which the Rabbis and the Church Fathers were well aware, as they discussed the levels of meaning inherent in the sacred texts. As Richard Hooker would point out, even the "plain meaning" of Scripture is subject to human reason and human authority. "Even such as are readiest to cite for one thing five hundred sentences of holy Scripture; what warrant have they, that any one of them doth mean the thing for which it is alleged? Is not their surest ground most commonly, either some probable conjecture of their own, or the judgment of others taking those Scriptures as they do?" (Laws, II.VII.8)

    But there is more. There are some texts that are perfectly "plain" which nonetheless the church has chosen, in its wisdom, to set aside or allow to fade into obscurity. Few if any Christians will hold that all people must abide by the literal mandates of the entire biblical text. All Christian churches clearly make choices as to what applies to them (and others) and what doesn't, and Christians have been doing so from the time of Christ himself.

    While Jesus is reported to have stated that he came in fulfillment of the law, nonetheless he was understood by the church explicitly to have set aside the dietary portions of that very law. (Mark 7:19) The Apostles, believing themselves to be enlightened by the Holy Spirit, continued the process, and set aside many other requirements beyond those they understood Christ himself to have abrogated, most importantly the requirement of circumcision. They were not able to accomplish this without significant and continuing controversy, attested to in the Pauline epistles. The early church continued this process, variously adding to or taking away from the requirements laid down in scripture, even the most solemnly delivered portions of it: they forbade (I think wrongly) the observance of a Saturday sabbath, for example, even though it is one of the Ten Commandments. Closer to home in time and space (because of the problems it created for Henry VIII) the church forbade (and then for political reasons gave Henry a dispensation to allow) something that the Scripture had mandated: a brother taking his brother's childless widow as a wife (Deut 25:5). And we all know what a mess that led to.

    Now this is not simply a question of interpretation concerning vague or problematical texts. Rather it is a question of the authority to decide in a given case that a relatively "clear" scriptural mandate or prohibition, which everyone more or less can agree means what it appears to say, is no longer applicable. Given the evidence outlined above that the church has felt itself competent to set aside certain laws laid out in Scripture, we are then left with the question, "By what criterion of judgment is this done." That the church judges the Scripture is manifest; so how does it do so?

    First, it is important to address those who believe the church of today has somehow lost this authority, by the unhappy divisions that beset us, which prevent a unanimous decision on what may or may not be set aside. Nothing could be clearer than that the church recorded in the New Testament was not unanimous: the Pauline correspondence witnesses to the ongoing controversy about circumcision, just as John's letters to the churches of the dispersion reveal serious divisions between what he called "light and darkness." That some "orthodox" Christians continued to observe the rules of circumcision, or whatever customs so divided the Johannine community, even while other parts of the church moved on (and survived) cannot be doubted.

    More importantly for us as Anglicans, unlike certain Christian fundamentalists, we are not forbidden this exercise of setting aside parts of the Scripture as no longer binding. We are explicitly free to do so, although there are limits, and the Articles of Religion are very clear in those limits to the church's scope of authority: Scripture is "sufficient," not all-inclusive; it is perfect in that for which it was intended, that is, salvation, but need not be held as the final word in all things. Article VI makes it clear that the church has no authority to require anything as a matter of faith or necessary for salvation if it cannot be read in or proven from Scripture, and proof requires much more than mere assertion or reassertion. This represents the minimalist character of the Anglican view of authority against what at the time were seen as the maximal claims of the Roman Catholics and the Puritans who wanted either to require extra-scriptural teachings as necessary on the one hand, or to limit the scope of the church to innovate in areas not addressed by scripture on the other. So much for the authority itself.

    Article VII begins to lay out the primary criterion upon which Scriptural mandates may be set aside: it grants the church complete liberty from the Mosaic law concerning rites, ceremonies, and forms of government, while requiring obedience to "the Commandments which are called Moral." That these "moral commandments" are the Ten Commandments, we have Christ's own testimony and summary as evidence (Matt 19:17ff), as Saint Paul repeated (Rom 13:8-10), and as Richard Hooker would later note: "The positive laws which Moses gave, they were given for the greatest part with restraint to the land of Jewry... Which laws he plainly distinguished afterward from the laws of the Two Tables which were moral." (Laws, III.11.6)

    So if a law lies outside the laws of the Two Tables, as most of the laws of the Old Covenant do, the church must apply its judgment to accept or reject them as applicable. That the Levitical prohibition on male homosexual acts is precisely such a law, as Rabbi Jacob Milgrom points out in detail in his magisterial study, restricted to Jewish males in the "land of Jewry," it is clear that it is precisely the sort of law the church has the power to reject or enforce as it sees fit. That the church of an earlier time enforced any law (as it did, for example, the laws against eating meat with blood, or lending money at interest) is no stay upon the church coming to a different mind at a later time, or in our own day.

    Finally, the Anglican witness (Article XX) is that the church (by which is meant each particular national church, as described in the previous Article) has authority in controversies of the faith, but is not permitted to require or decree anything contrary to "God's Word written."

    Now, some might well say, indeed have said, "Ah, but there's the rub! To approve of same-sex unions or to ordain a person who is engaged in one is to decree something contrary to God's word written." However, one must be very careful about claiming what is actually "written" in "God's word" and what is inferred from it by extension. The Ten Commandments alone have the highest claim actually to having been written by the hand of God, and we have already noted the particular honor in which they are held in the Anglican way of thinking.

    This is not the place to expand on the varied arguments that have been made back and forth, but it is abundantly clear that as far as the written text of the Scripture itself is concerned, while there is apparent disapproval of same-sex sexuality in certain particular contexts(1) connected with rape, idolatry, prostitution or promiscuity, just as there is with mixed-sex sexuality, there is no explicit disapproval in the text itself concerning faithful, monogamous, loving and mutual relationships either hetero- or homosexual.

    On the positive side, the greatest love story in all of Scripture is that of Jonathan for David. Surely it is ironic that those who seek to stretch a few verses and historical passages into a bulwark against same-sex relations, while at the same time perceiving a substantial heterosexual marriage theme (or at least "theme music") running throughout Scripture (and rather dissonantly at odds with the few specific things Saint Paul and Jesus Christ actually said about marriage) —” surely, I say, it is ironic that they are blind to the manifest and explicit love displayed in the extended narrative running from 1 Samuel 18 through 2 Samuel 1, still visible in spite of the efforts of redactors and translators to obscure it.(2)

    When we come to ordination, Scripture says very little about requirements or impediments, and nowhere explicitly singles out persons in same-sex relationships as unsuitable. To argue, as some have, that this goes without saying is to admit that it is not said, or rather, not written. And what little the Scripture does record about the requirements for ordination (e.g., 1 Timothy 3) is given little regard these days.

    Realizing that sexuality is a contentious matter, allow me to look at another passage of Scripture entirely. It concerns Saint Paul's mandate that women must cover their heads in prayer. (1 Cor 11:3-16) Now some may be saying, "This is a trivial matter!" I would respond, the very act of declaring it to be trivial proves that they believe themselves competent to make that judgment concerning the Scripture.

    Saint Paul clearly did not think it to be trivial. First, I beseech you to go back and read the passage before you leap to judgment. It doesn't appear in our lectionaries (even the Daily Office skips over it), so many Episcopalians may never have read or heard it.

    (soft background music)

    Now that you've read it, note these points:

  • Paul spends more time on this matter in an extended and multi-tiered argument against women praying with their heads uncovered than he does in even his most extended comment on what many read as a condemnation of same-sex sexuality (Romans 1:26-28).
  • The text is relatively "clear" or "plain" as to Paul's intent that women should have their heads covered when praying or prophesying. There are some critical questions about what is meant concerning shaving the head (v 5-6), and "authority" and "angels" (v 10), but this does not render the rest of the text unclear.
  • Paul bases his argument on Scripture (citing Genesis in vv 7-9), reason and nature (v 14) and finally on tradition (v 16), with clear reference to the witness of the various local churches being in harmony on this teaching.
  • His argument is far from trivial, but concerns the order of the church in both a Christological and eschatological context (vv 3,10).
  • He stresses that this matter is tied up with the mystery of human relationships, mutuality, and interdependency (vv 11-12).
  • Clearly, few churches today take this passage as seriously as Saint Paul did; hence its omission from the lectionary. While it is very doubtful Paul would have regarded anything he wrote as "Scripture" (in the way he would have used the term in reference to Holy Writ) the church did make that judgment. So we are left with the task of teasing apart which sections of the Pauline material we wish to give that level of attention and honor. We have obviously already made that decision concerning much of the Old Testament, and not a small part of the New. So the question must be, "What are the criteria by which any national church may come to understand portions of the Scripture as no longer binding upon them."

    I say "national church" and "upon them" because in our polity that is the highest court of judgment and also broadest limit of authority. The efforts of the Windsor Report to introduce a communion-wide decision-making body are, I believe, incapable of implementation given the wide range of opinion on many matters. It would be better to follow the traditional Anglican way of allowing each individual national church to proceed at its own pace, with toleration for each other and remaining in communion in the knowledge that the decisions of one province need not be adopted in all provinces. After all, if the early church had followed the path commended by Windsor, the handful of apostles ceasing to proclaim the Gospel because the majority of the religious leaders throughout the world condemned it (Acts 4:18-19, 5:28-29, 28:22), there would be no church. If the bishops of the tiny English national church at the time of the Reformation had heeded the demands of the papacy, we would have waited four hundred years for the vernacular liturgy and the common cup, to say nothing of the ordination of women —” for which we would still be waiting! The simple fact is that the church does not progress like a train, with all the cars moving as one, but like a caterpillar, as waves of movement stir through its body and carry it forward.

    So what are the historic, traditional Anglican criteria for setting aside a Scriptural requirement? Here are a few observations, in no particular order, and for efficiency I'll use the algebraic X for "whatever it is we're talking about":

  • X is not part of the Ten Commandments, or does not lead to a violation of them
  • X does not entail a violation of the "summary of the law" or the Golden Rule, or Paul's "law of love" — all of which are held to summarize the moral law of the Old Covenant embodied in the Ten Commandments
  • X cannot be required as necessary, though it may be allowed
  • One part of the church may come to allow X while another, because of culture or conviction, chooses not to; but the level of decision making should be at least national
  • The restriction of X in Scripture is seen to stem from a situation limited by culture or time or place
  • Allowing X is seen as a fulfillment of a weightier matter of ethical or moral principle than that which forbidding it was understood to protect(3)
  • This would appear to be a bare outline of the limits of legal judgment and authority over the Scripture, but I think a sufficient one. It should also be clear from the forgoing that I believe the Episcopal Church is completely within its rights in acting as it has to date.

    Tobias Stanislas Haller BSG is Vicar of Saint James Church Fordham, The Bronx

    Note 1. The weakness of using historical passages to make legal points was noted by Hooker. "I wish they did well observe, with whom nothing is more familiar than to plead in these causes, 'the law of God,' 'the word of the Lord;' who notwithstanding when they come to allege what word and what law they mean, their common ordinary practice is to quote by-speeches in some historical narration or other, and to urge them as if they were written in most precise exact form of law... When that which the word of God doth but deliver historically, we construe without any warrant as if it were legally meant, and so urge it further than we can prove that it was intended; do we not add to the laws of God, and make them in number seem more than they are?" Laws, III.V[^]

    Note 2. The evidence for the nature of the love of Jonathan for David lies in the text itself, though in some places this has been obscured. Efforts were also made to eliminate or otherwise bowdlerize the text: the very significant initial passage describing Jonathan's first infatuation with David (1 Samuel 18) is omitted from the Septuagint. Similarly, Jerome, in his Vulgate Latin translation, edited the famous verse in 2 Samuel 1, "Your love for me was wonderful, surpassing the love of women," by adding the phrase "for their children."[^]

    Note 3. Jesus laid out this hierarchy of moral law in his rebuke of those who tithed mint, dill and cumin, while neglecting "the weightier matters of the law: justice, mercy and faith" -- no doubt his own allusion to Micah 6:8 about what the Lord requires.[^]