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.


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