Special to Virtueonline
www.virtueonline.org
August 26, 2009
I INTRODUCTION
The Anglican theological position has been summarised as: "in essentials - unity, in non-essentials - liberty, in all things - charity",2 however the Anglican Communion ("Communion") is currently suffering from disunity. Despite the publicity over human sexuality, the real issue is "a crisis over biblical authority and its clarity"3 created by increasing divergence of theological belief in essential matters, and in what constitutes an essential matter of the Christian faith.4
One proposed response to this crisis has been for the provinces of the Communion to adopt a formal covenantal relationship ("Covenant"),5 however its development has also been hindered by theological divergence. Despite discussions at the Lambeth Conference in 2008,6 and at the Anglican Consultative Council in 2009, there has been little progress towards the adoption of a Covenant capable of meeting the crisis facing the Communion. But while the wider Communion remains hamstrung by theological divergence, some Anglicans have demonstrated sufficient unity of theological belief in both essential matters and in what constitutes an essential matter of the Christian faith7 to form the Fellowship of Confessing Anglicans ("Fellowship").
This paper will demonstrate that the Communion is no longer capable of adopting a Covenant capable of addressing the crisis facing the Communion, but that a Covenant between Fellowship members is both possible and necessary. This paper will also identify some of the challenges to the implementation of a Fellowship Covenant, and source methods of meeting those challenges from the principles of common law.
II THE COMMUNION, THE FELLOWSHIP AND COVENANT
A. The Communion requires a Covenant
Fundamentals of Union
Within in any group of people there will be agreement upon some matters and disagreement upon other matters. The extent to which a group can remain united depends upon two characteristics of the members of that group. The first is the extent to which the members hold consistent beliefs, and the second is the extent to which the members accept divergent beliefs of other members of the group. Where there is no divergence of belief there will be no disagreement and thus no threat of division, but such complete consistency is unrealistic. Groups avoid division where there is sufficient consistency of belief in relation to matters essential to the group, and sufficient acceptance of divergent beliefs in relation to matters deemed by the group to be non-essential.
2. The Communion requires a Covenant
Theological divergence in the Church of England was initially limited because it was created within the British culture and that cultural expression of Christianity was exported throughout the world.
Theological divergence increased as Anglican churches in the colonies developed into distinct provinces, however there remained theological consistency in relation to matters such as the authority of the Bible, the Thirty-Nine Articles of Religion and the Book of Common Prayer.
Any theological divergence that existed was generally acceptable to the Communion as a whole. Theological divergence within the Communion increased during the twentieth century over the role of women in church leadership, and the actions taken by some dioceses were unacceptable to other parts of the Communion. Consequently, some Anglicans joined the Roman Catholic Church or formed splinter groups,9 but again this theological divergence remained acceptable to the majority of the Communion.10
In and around 2003, the Episcopal Church ("TEC") consecrated a non-celibate homosexual man as a bishop and some dioceses in the Anglican Church of Canada ("ACOC") began to bless homosexual unions. These actions were condemned by several Anglican provinces, and the Church of Nigeria (Anglican Communion) severed its relationship with both TEC,11 and those Canadian dioceses.12 TEC has subsequently passed resolutions at its General Convention in 2009 affirming the blessing of homosexual unions and that there is no barrier to the ordination of homosexual people.13 These actions represent a theological divergence unacceptable to large parts of the Communion.
The theological divergence within the Communion is now so great that it must be regulated or diminished in order to avoid some form of division. Therefore a Communion Covenant capable of meeting the crisis in the Communion must facilitate firstly the identification of essential beliefs, and secondly the discipline of those who breach them.
B. The Communion cannot adopt a Covenant
1. Theological Consistency is required for Covenant
A Christian group can only remain united when its members exhibit sufficient theological consistency and sufficient acceptance of any theological divergence. Those conditions must also be satisfied by prospective members for entry into a Covenant, for entering into a meaningful covenantal relationship is an act of unity. Therefore in order to adopt a Covenant, all of the provinces of the Communion must exhibit sufficient theological consistency in essential matters and sufficient acceptance of any theological divergence in non-essential matters.
2. Sufficient Theological Consistency no longer exists within the Communion
The crisis in the Communion has seen some provinces sever relations with other provinces, and the Anglican Church in North America has been created by those who cannot accept the theological positions of TEC and ACOC. This example alone demonstrates there is no longer sufficient theological consistency within the Communion for the adoption of a Communion Covenant.
Further or in the alternative, the provinces which have joined the Fellowship are unlikely to adopt a Communion Covenant unless it allows for the discipline of those provinces holding theological positions considered by Fellowship members to be sinful ("sinful theology"). TEC and ACOC are unlikely to enter a Communion Covenant unless their freedom from foreign interference is guaranteed.
There is now such theological divergence between two sections of the Communion that neither will accept the position of the other. Therefore there is no longer sufficient theological consistency, or sufficient acceptance of theological divergence, for the adoption of a Communion Covenant. Therefore the Communion is no longer capable of adopting a Covenant.
C. Fellowship and Covenant
1. Sufficient Theological Consistency does exist within the Fellowship
The formation of the Fellowship demonstrates significant theological consistency and acceptance of theological divergence among its members. Those characteristics exist despite the traditional tension between the Anglo-Catholic and Evangelical wings of the Anglican Church, both of which have contributed members to the Fellowship. Those Fellowship members have joined specifically to identify particular matters as essentials of the Christian faith and to reject theological divergence in those matters.
Furthermore, the acceptance of the Fellowship members of the Jerusalem Declaration as a requirement for Fellowship membership establishes that the Fellowship is currently capable of adopting some form of covenant. However as the Jerusalem Declaration is a statement of principles and does not allow for cross-provincial discipline, it is not the type of Covenant discussed in this paper. Nevertheless, the Jerusalem Declaration still demonstrates the mutual concern of Fellowship members with theological divergence in essential matters.
2. The Fellowship needs a Covenant
The theological consistency of the Fellowship enables it to adopt a Covenant, but the existence of such consistency might also support the argument that the Fellowship does not require a Covenant. However the Fellowship may not always exhibit such theological consistency. The theological divergence which created the crisis in the Communion did not suddenly appear, but rather developed in provinces where the prevailing theology gradually drifted away from orthodox doctrine.14 By the time the consequences of that theological divergence became obvious, the majority of the decision makers in some provinces no longer subscribed to orthodox doctrine.
The Fellowship should therefore be concerned that it, like the Communion, currently lacks the capacity to subject members of one province to the discipline of the Fellowship as a whole. Therefore a risk remains that, in the future, one Fellowship province might become a safe-haven for those advocating theological divergence in essential matters. Should this occur, the Fellowship could sponsor the creation of a new province, as has been done in North America, but that is costly in terms of both human and financial resources. A Fellowship Covenant allowing for cross-provincial discipline would deal with any theological divergence and reserve those human and financial resources for evangelism and mission.
The Fellowship requires a Covenant not because of any current theological divergence but to ensure it has the capacity to regulate or discipline any future theological divergence. A Fellowship Covenant would represent a mutual commitment of Fellowship members which can be relied upon in the event of a crisis. The Fellowship must adopt a Covenant in the short term, while it retains the capacity to do so.
D. Challenges to a Fellowship Covenant
There are many challenges to a Fellowship Covenant, such as the traditional tension between the Anglo-Catholic and Evangelical wings of the Anglican Church. Other examples include differing views within the Fellowship on the ordination of women, and the relationship between Fellowship and non-Fellowship members of the Communion. The latter challenge is of particular importance as the Fellowship must continue to relate in a Christian manner with faithful Anglicans who have not joined the Fellowship. Many Anglican organisational units also resent outside interference in their activities.
Despite the many challenges facing the Fellowship, it has already united the strictest Anglo-Catholics and the greatest Evangelicals in an association. The purpose of this paper is to demonstrate that, despite the many challenges to a Fellowship Covenant, the solutions to these challenges may be found in another of the great English traditions: the common law.
III COMMON LAW AND A FELLOWSHIP COVENANT
A. Norman England and Common Law
1. Historical Background
Between the withdrawal of the Roman legions and the Norman invasion, England was repeatedly invaded by ethnic groups who introduced their own laws and customs which varied from shire to shire.15 Although there had been several compilations of national laws,16 the central government was relatively weak and law was usually applied in a relatively informal manner by a local assembly.17
Duke William of Normandy conquered England in 1066 and declared that existing local laws would be maintained, but he also established a strong central government.18 The power of that central government was exercised by representatives who travelled among the shires to, among other duties, administer justice.19 A person with a complaint could therefore petition either the local lords or a royal judge. The royal judges became more popular because their judgments were enforceable throughout the kingdom and as visitors they were less likely to be subject to local prejudice.20 In time the royal judges replaced the local courts.21
The original judges were usually untrained in law and so relied upon decisions made by other judges.22 As these decisions were enforceable throughout England, they overrode any local custom and so became known as "common law".23
2. Development of Common Law Principles
Although statutes passed by parliament overrode common law decisions, there were relatively few statutes enacted by parliament until the reign of Henry VIII,24 leaving the common law to develop under the guidance of the judges. Speaking of the breadth of common law, Blackstone stated:
Thus, for example, that there shall be four superior courts of record; the chancery, the king's bench, the common pleas, and the exchequer .... that the eldest son alone is heir to his ancestor .... that property may be acquired and transferred by writing .... that a deed is of no validity unless sealed and delivered .... that wills shall be construed more favourably, and deeds more strictly .... that money lent upon bond is recoverable by action of debt .... that breaking the public peace is an offence, and punishable by fine and imprisonment .... all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.25
Many of these principles were later incorporated into legislation, but they were law in England long before that incorporation. In addition to particular laws, the common law also developed legal doctrines such as stare decisis and reception.
(a) Doctrine of Stare Decisis
The common law doctrine of stare decisis ("let the decision stand") requires judges to make decisions according to the manner in which they have been made previously. Lower courts are bound to follow the precedents set by higher courts, and the highest courts are expected to abide by their own decisions unless some compelling reason arises for the departure from precedent.26
Four advantages to stare decisis identified in Telstra Corporation v Treloar27 included firstly the certainty that comes from being able to rely upon the guidance of past decisions and secondly the equality that comes from treating all cases alike.28
Thirdly, subsequent courts need not re-examine issues which have been examined previously, and fourthly the appearance of justice is supported when the law is applied in a manner which does not depend on the personal views of a particular judge.29
Notwithstanding the doctrine, lower courts should follow the decisions of higher courts because if they depart from precedential decisions, the higher courts can simply overrule them on appeal.30 In this manner, stare decisis ensures an orderly and incremental development of legal principles.31
(b) Doctrine of Reception
As the legal system of the Empire of Great Britain, the common law also interacted with the foreign legal systems already operating in territory acquired by Britain. The doctrine of reception provided that when Britain acquired new land by conquest or secession by a foreign power, the existing laws of the foreign land remained valid except for those laws which were repugnant to the law of England.32
Blackstone described the doctrine as: But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.33 Section 4.
In this context, laws considered against the law of God included practices such as cannibalism, and would also have included any requirement to observe non-Christian religious practices.
B. Application of Common Law Principles to a Fellowship Covenant
This section identifies four challenges to the adoption of a Fellowship Covenant and demonstrates how a Fellowship Covenant based upon common law principles could meet each of those challenges.
There will be more than four challenges, but the common law principles are sufficiently adaptive to meet any challenge that might arise.
1. Discipline
(a) Challenge
The current crisis within the Communion has been brought about by theological divergence resulting in the propagation of sinful theology. Each instance of sinful theology is a theological divergence in a matter the Fellowship deems to be an essential matter of the Christian faith. The current structure of the Communion facilitated this crisis by ensuring that if the province in which a person is propagating sinful theology will not discipline them, they cannot be disciplined. The simple solution is to create a central body with the power to investigate and adjudicate accusations of sinful theology, and then to institute discipline which overrides any contrary decision of the local province.
However there remains significant divergence of theological belief in non-essential matters within the Fellowship, and its continued existence relies upon accepting that there are non-essential matters in which liberty is the proper response. Therefore the simple solution is impractical for two reasons. The first is that a central prosecuting body could be dominated by one segment of the Fellowship which insists upon a definition of essential matters which does not represent the views of the Fellowship. The second reason is that Anglican organisational units traditionally dislike external interference and would be unwilling to accept an arrangement which gave such overreaching power to an unaccountable central body.
The challenge is to facilitate the accountability of each Fellowship member to the whole Fellowship, while avoiding excessive centralisation. The simple solution fails to meet this challenge.
(b) Common Law Solution
Instead of replacing the local courts, the Norman kings offered an alternative. A petitioner could make an accusation before either the local court or before a royal judge. In the same manner, the Primates' Council could be empowered to judge accusations of sinful theology as an alternative to the judicial processes of local provinces. Thereafter a person wishing to make an accusation of sinful theology would have a choice, but like the Norman royal judges, the decisions of the Primates' Council would be binding throughout the Fellowship. This mechanism would allow the Fellowship to implement a unified judicial process, however this mechanism also immediately clashes with local autonomy.
The same unified judicial process could be established within the Fellowship without so great a clash with local autonomy by requiring any accusation of sinful theology to be made first through the judicial processes of the local province. The Primates' Council would only be empowered to act when local judicial processes were exhausted, and by way of appeal from the final decision of a province's highest internal court.34
The common law solution is therefore to empower the Primates' Council to act as a final court of appeal for the Fellowship. Either approach set out above facilitates the common law solution, however given the Anglican dislike of external interference the second is more practical. Nevertheless, either of those options would empower the Primates' Council to deliver decisions which were binding upon the parties in the case before them, but would then also serve as a precedent for the rest of the Fellowship. The Primates' Council would become, as the ecclesiastical representatives of the Fellowship, responsible for determining the standard which must be observed by the entire Fellowship.
(c) General Considerations
(i) Power of the Primates' Council
This solution would empower the relatively small Primates' Council to make decisions binding upon the Fellowship, but it is important to note that such judicial decisions would not be a directive or edict to the Fellowship. Those decisions would rather be an indication that if a similar dispute were brought before the Primates' Council in the future, they would make the same decision.
Accountability to such a small body may be difficult for independently minded Anglicans to accept, however mutual accountability is the only way for the Fellowship to avoid the crisis afflicting the Communion. Both mutual accountability and the satisfaction of concerns over the power of the Primates Council can be satisfied by making decisions of the Primates' Council appealable to the body of all Fellowship bishops.35 Given the practicalities of organising all Fellowship bishops to hear an appeal, such an appeal should only be heard if a sufficient number of Fellowship bishops consent to hear the appeal.36 Authoritative decisions which deliver precedent binding upon the entire Fellowship would therefore be made by the ecclesiastical representatives of the entire Fellowship.
This approach is consistent with the practice of the early church as recorded in chapter 15 of the Acts of the Apostles. When a theological dispute arose in Antioch, and it could not be settled locally, St Paul and St Barnabas were sent to Jerusalem to obtain the judgment of the apostles, and the bishops are the successors to the apostles.37
(ii) The Limited Power of Decision
Making A decision of the Primates' Council would require the parties involved to abide by that decision, and the relevant province to facilitate that decision, but the influence of the same decision over the Fellowship would be by way of precedent. Accordingly, if a similar accusation of sinful theology arose, the authorities in the local judicial process would be expected to apply the precedent set by the Primates' Council. While local authorities could make a different decision, perhaps by distinguishing the case before them from the precedent, the Primates' Council would also be able to overrule the local authorities if the matter were brought before them on appeal.
(iii) Limited Power
As a method of decision making based upon common law, this approach would be driven by complaints. The Primates' Council could only issue a binding decision when a claim of sinful theology is brought before them. The Primates' Council would not have the power to arbitrarily and voluntarily issue a decree which is binding upon the Fellowship. This limited power to issue binding decisions does not exist in the Communion, which has chosen provincial autonomy over mutual accountability. This power will provide for mutual accountability, but its limitations will also ensure that any loss of local autonomy is minimal. The Fellowship members will therefore only be subject to minimal interference while they learn to live in a mutually accountable relationship.
(iv) Inundation of Complaints
There is a risk that the Primates' Council would find their time monopolised by hearing appeals. While the Primates' Council would include a judicial role, the primary role of the Primates' Council would still be to lead the Fellowship, and each Primate would still have duties within his own province.
In order to fulfil their judicial role without compromising their other duties, the Primates' Council should appoint an advisory committee. That committee would review appeals and provide the Primates' Council with a summary of the issues and a recommendation. That recommendation might be that the Primates' Council refuse to hear the appeal,38 or that the appeal should be heard and determined in a particular manner.
As an advisory committee, the Primates' Council would always be free to disregard that advice, for it would be the Primates' Council which is empowered to make decisions. However an advisory committee would filter the appeals to ensure that any time spent by the Primates' Council exercising their judicial role is not wasted.
(v) Application to Modern Issues
Either implementation of the common law principles set out above in a Fellowship Covenant would effectively deal with the issues facing the Communion if they were to occur in the Fellowship. For example, if a province attempted to consecrate a homosexual bishop, the decision to do so could be appealed to the Primates' Council as sinful theology and the Primates' Council would have the power to forbid that appointment. An appeal from the Primates' Council would be determined by all Fellowship bishops, making the single province or diocese subject to the ecclesiastical representatives of the entire Fellowship.
However if the Fellowship adopts a Covenant in this form, that situation is unlikely to arise for the issue has only arisen within the Communion through decades of gradual drift from orthodox doctrine resulting in significant theological divergence. Either implementation would allow each increment of theological drift to be challenged and arrested through mutual accountability.
Therefore the consecration of homosexual bishops would not arise because the ordination of homosexual priests or deacons could be prevented. The ordination of homosexuals could be prevented because any claim that homosexuality is not sinful could be authoritatively dismissed within the Fellowship. Theological divergence would not arise in the Fellowship as has arisen in the Communion because the theological drift away from orthodox doctrine could be arrested.
2. Autonomy and Control
(a) Challenge
Anglican organisational units have traditionally prized autonomy and disliked outside interference, especially where the alternative involves submission by Anglo-Catholics to Evangelicals, or vice versa. However any covenantal relationship, from a marriage to a commercial contract, involves a surrender of some autonomy to become accountable to another. That surrender mirrors the journey of the Christian who surrenders their own autonomy to become accountable to Christ. Whatever the advantages of local autonomy, total autonomy has also created liberal safe-havens with no accountability to the wider church.
While a central authority displacing all local autonomy would settle this issue, the Communion has also traditionally rejected excessive centralisation. The challenge is to establish mutual accountability in such a manner that while disunity in essentials is prevented, liberty in non-essentials is maintained.
(b) Common Law Solution
(i) Theory
While the judicial decisions of the Primates' Council would be binding upon all Fellowship members, judicial power is limited. The Primates' Council could forbid an Anglican organisational unit from teaching or implementing sinful theology, but could not require a province to implement any particular agenda. In secular courts the power is described as 'judicial review' and permits the courts to invalidate certain legislative acts but does not permit the judiciary to require that any particular legislation be enacted. This power does not create a centralised legislative system with the power to replace local autonomy.
Furthermore, the Primates' Council would be expected to limit their decisions to prohibiting divergence of theological belief in essential matters. A person accused of sinful theology would be able to claim their practice relates to a 'non-essential' matter where liberty, rather than unity, should be enforced. The Primates' Council might refuse to hear such a petition on that basis, or hear the petition and determine that the matter should be determined locally rather than across the entire Fellowship.39
Therefore while a Fellowship province is free to make any decision they wish, as they are currently able to, those decisions would be ultimately subject to a veto by the ecclesiastical representatives of the rest of the Fellowship. That veto should however only be exercised if those representatives determine that such a decision does not represent an authentic expression of Christianity. While this approach involves submission to an external authority that authority is the body of the Fellowship, so what affects the Fellowship is decided by the Fellowship.40 It is a legal expression of the Scriptural exhortation: "Submit to one another out of reverence for Christ." (Ephesians 5:21, NIV).
(ii) Practical Example – Worship Style
A dispute may well arise within the Fellowship due to the wide variety of worship styles within both the Communion and the Fellowship. Confusion over the significance of cultural meaning, a diocesan attempt to institute a compulsory order of service or a proper query regarding the validity of a particular worship practice might result in an appeal before the Primates' Council. But the Primates' Council is the best body to hear such a dispute.
Each Primate is leader of a province incorporating a variety of worship styles and practices so the Primates' Council will consist of leaders who represent a variety of theological positions on non-essential matters. An appeal from a decision of the Primates' Council would be heard by all Fellowship bishops, which is even more representative of divergent theological positions which are nevertheless accepted within the Fellowship. Determination by these bodies, which must reach a significant level of agreement before a worship style is deemed an expression of sinful theology, is the best protection for continued liberty in non-essential matters, without sacrificing mutual accountability.
Although the usual Anglican desire for autonomy stands opposed to the power of the Primates' Council to declare a theological position to be sinful, it is this power which will distinguish the Fellowship from the Communion. It is this power which will allow the Fellowship to avoid the crisis afflicting the Communion.
3. Membership of the Fellowship
(a) Challenge
The entry of a new organisational unit into the Fellowship will be meaningless unless it is subject to the same mutual accountability as the rest of the Fellowship. However entry of a new member ensures there will be an immediate clash between the rules, canons or procedures of the new member and those of the Fellowship. The challenge is to immediately subject new members to the mutual accountability necessary to make membership meaningful, while also protecting their autonomy and allowing them to learn to live as part of the Fellowship.
(b) Common Law Solution
According to the doctrine of reception, the laws applicable in a territory acquired by Britain through conquest or secession by a foreign power remained in force until specifically modified, save for those repugnant to the law of England. Those laws repugnant to the law of England were immediately invalidated. Any dispute was determined by the judiciary.
In the same manner, all canons, rules, statutes or other regulations governing a new Fellowship member would remain in force upon becoming a member of the Fellowship. However where a canon or other regulation of the new Fellowship member is in conflict with a precedent set by the Primates' Council, the new member could reasonably expect to find that canon or regulation challenged and overruled.
The Primates' Council would be responsible for settling any dispute regarding the existence of a conflict between the new member's canons or regulations and the Primates' Council's decisions. However a prospective Fellowship member will seek membership because they want to be subject to the discipline of the Fellowship, which means there should be little dispute in practice. 4.
Development of Fellowship Canon Law
(a) Challenge
The Articles of Religion state that "General Councils ... may err, and sometimes have erred, even in things pertaining unto God."41 Yet while rejecting any claim to the infallible authority attributed to the Pope by the Roman Catholic Church, the Fellowship has also rejected the assertion that humanity cannot be sure of anything.42 But to require theological consistency of Fellowship members, the Fellowship must also be able to define the essential matters of the Christian faith. The challenge is to develop a method of making binding decisions which recognises the inherent sinbased limitations of humanity while accepting that humans do have the capacity recognise divine revelation.
(b) Common Law Solution
The common law doctrine of stare decisis required similar cases to be decided in a similar manner. On this basis, the common law became reliable, but never entirely settled, because the higher courts were still able to depart from precedent.
The incorporation of stare decisis would provide the same reliability to a developing Fellowship canon law because Fellowship members would be expected to abide by decisions of the Primates' Council. Failure to do so could lead to an appeal to the Primates' Council which would be able to invalidate any contrary decision made by local authorities.
Stare decisis would make it a characteristic of Fellowship canon law that a theological position becomes stronger each time it is affirmed, while reserving to the Primates' Council the power to revise prior decisions if it were deemed necessary. Therefore, without claiming infallibility, the Primates' Council would have the capacity to both define matters essential to the Christian faith and to re-address those decisions to express the eternal truths of Christianity anew to each generation.
IV CONCLUSION
A church seeking unity in essentials and liberty in non-essentials requires a Covenant to remain united, but the Communion is already too theologically divergent to adopt a Covenant. At the time of writing the Fellowship retains sufficient theological consistency to adopt a Fellowship Covenant and should do so without delay in order to avoid the theological divergence afflicting the Communion.
A Fellowship Covenant incorporating the principles set out above will introduce discipline while protecting local autonomy, and create a binding Fellowship canon law without the creation of a new papacy. In speaking of a Communion Covenant the Archbishop of Canterbury perfectly described the value of the principles set out above, the relevant parts of which the author sets out below.
[they]...express the need for mutual recognisability, mutual consultation and some shared processes of decision-making. They are emphatically not about centralisation but about mutual responsibility. They look to the possibility of a freely chosen commitment to sharing discernment (and also to a mutual respect for the integrity of each province, ...). They remain the only proposals we are likely to see that address some of the risks and confusions already detailed, encouraging us to act and decide in ways that are not simply local.43
A Fellowship Covenant will be a formal covenantal relationship allowing the Anglo- Catholic and Evangelical wings of the Fellowship to unite with the other halves of themselves to produce one orthodox Anglican Church. These principles represent a modern and practical via media found not in the rejection of Roman Catholic or Protestant but in the balance of problematic extremes. The author commends these principles to the readers' consideration.
Bibliography
Books Crawford, James and Brian Opeskin. Australian Courts of Law (4th ed, 2004)
Allen, W H. Law Made Simple (5th ed, 1978)
Cook, Catriona et al. Laying Down the Law (6th ed, 2005)
Enright, Christopher. Studying Law (4th ed, 1991)
Speeches
Driver, Archbishop Jeffrey 'Anglicanism, Popes and three-legged stools' (Speech delivered at St Peter's Cathedral, Adelaide, 14 September 2008)
Jensen, Archbishop Peter (Speech delivered at 2006 Synod of Sydney Diocese, Sydney, 2006)
Articles
Lambeth Commission on Communion. The Windsor Report (2004).
Akinola, Archbishop Peter. A Most Agonising Journey towards Lambeth 2008 (2008) Church of Nigeria (Anglican Communion) < http://www.anglicannig. org/main.php?k_j=12&d=88&p_t=index.php?> at 29 July 2009
de Santis, Solange. 'Canada sees first sanctioned blessing', Anglican Journal (Canada) 1 September 2003
Venables, Archbishop Greg. 'The Danger of Drift (2009) Fellowship of Confessing Anglicans
Orombi, Archbishop Henry. 'What is Anglicanism?' (2007) August/September First Things,
Letter from the Most Reverend Rowan Williams to the Bishops, Clergy and Faithful of the Anglican Communion.
Reflections on the Episcopal Church's 2009 General Convention. 27 July 2009.
Website
General Convention 2009 Legislation (2009) The Episcopal Church
William Blackstone, Commentaries on the Laws of England (first published 1765-69) General Telstra Corporation v Treloar (2000) 102 FCR 595
Articles of Religion 1562, Art XXI.
2 Most Reverend Jeffrey Driver, 'Anglicanism, Popes and three-legged stools' (Speech delivered at St Peter's Cathedral, Adelaide, 14 September 2008).
3 Most Reverend Peter Jensen, (Speech delivered at 2006 Synod of Sydney Diocese, Sydney, 2006).
4 Hereafter referred to as "theological divergence".
5 Lambeth Commission on Communion, The Windsor Report (2004), para 118.
6 Where the author was privileged to serve as a Steward.
7 Hereafter referred to as "theological consistency". Members of political parties in liberal democracies, such as Australia, demonstrate this principle as they are generally united in the principles expressed in the party platform, or are at least willing to accept those principles. However if the party introduces principles into the party platform which some members cannot accept, those members will leave the party.
8 In those circumstances some members might argue they should remain members of the party in order to change the party platform from within, however any continued membership represents some form of acceptance.
9 Eg Anglican Catholic Church in Australia.
10 Although in this case acceptance for many Anglicans was conditional upon being insulated from the ministry of ordained women.
11 Most Reverend Peter Akinola, A Most Agonising Journey towards Lambeth 2008 (2008) Church of Nigeria (Anglican Communion) < http://www.anglicannig. org/main.php?k_j=12&d=88&p_t=index.php?> at 29 July 2009.
12 Ibid; Solange de Santis, 'Canada sees first sanctioned blessing', Anglican Journal (Canada) 1 September 2003.
13 See eg: TEC General Convention 2009 Resolutions C056 and D025; General Convention 2009 Legislation (2009) The Episcopal Church
14 This is the theological 'drift' referred to by the Archbishop of the South Cone - Most Reverend Greg Venables, 'The Danger of Drift (2009) Fellowship of Confessing Anglicans
15 C F Padfield, Law Made Simple (5th ed, 1978) 9.
16 Ibid 10.
17 James Crawford and Brian Opeskin, Australian Courts of Law (4th Ed, 2004) 6.
18 Catriona Cook, Robin Creyke, Robert Geddes and Ian Holloway, Laying Down the Law (6th ed, 2005) 11.
19 Padfield, above n 15, 10-11.
20 Cook, above n 18, 13.
21 Christopher Enright, Studying Law (4th ed, 1991), 125.
22 Cook, above n 18, 13.
23 Ibid 13.
24 Ibid 25.
25 William Blackstone, Commentaries on the Laws of England (first published 1765-69) Introduction, Section III.
26 Cook, above n 18, 75.
27 (2000) 102 FCR 595 at 602.
28 Telstra Corporation v Treloar (2000) 102 FCR 595 at 602, per Branson and Finkelstein JJ.
29 Ibid.
30 Cook, above n 18, 76.
31 Ibid 76.
32 Ibid 32.
33 Ibid Introduction,
34 This process is common in countries with a federal system of government, which includes common law nations such as Australia, Canada and the United States of America. However it also includes federal nations which do not have a common law system.
35 Any reference in this paper to a decision that can be made by the Primates' Council includes the capacity for that decision to be appealed to the body of all Fellowship Bishops, provided that a sufficient number of Fellowship bishops have consented to hear the appeal. 36 This process is similar to the political process of 'voter's veto' whereby voters can overturn the implementation of specific legislation by way of majority decision in a referendum on the issue. However the referendum can only be put to the voters if a significant percentage of voters request the referendum.
37 Most Reverend Henry Orombi, 'What is Anglicanism?' (2007) August/September First Things,
38 Perhaps because it is a matter which in the opinion of the committee should be decided locally.
39 The author notes a variety of attitudes towards the ordination of women to the priesthood within the Fellowship. This may be the first example of a matter which, for the time being at least, is held to be one for local determination.
40 Letter from the Most Reverend Rowan Williams to the Bishops, Clergy and Faithful of the Anglican Communion, Reflections on the Episcopal Church's 2009 General Convention, 27 July 2009, para 13, (Note that Archbishop Williams was speaking in relation to the Communion).
41 Articles of Religion 1562, Art XXI.
42 Venables, above n 14.
43 Williams, above n 40, para 20.
----Ashley Dewell is a solicitor based in Alice Springs in the Diocese of the Northern Territory of the Anglican Church of Australia. He is a life-long Anglican who was baptized at St Richard's Parndana and confirmed at St Mark's Golden Grove, both in the Diocese of Adelaide of the Anglican Church of Australia. Dewell holds a degree in Computer Science; Bachelor of Laws (Honours); Graduate Diploma of Legal Practice; Master of Laws; and Master of Theological Studies (graduand only)
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