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.


1 comment:

Gawain said...

Impressive! I haven't read Althusius since required for political theory at the Divinity School. I'm glad you're reminding us of his work. Time for a longer blog that reintroduces people to him.

Interesting - he had often been used by political conservatives against those who quoted Marx or Rousseau.