Apologia for the Canon Law

I'd like to begin my comments this morning by thanking the Foundation for this opportunity to think and speak about something very dear to my heart: the role of law in the life of the church. It is a privilege to be here and to be invited to respond to the thoughtful work done by Jonathan Glass and Gary Hall. I hope that what I bring to our discussion might give us a different perspective and context within which to raise some new questions to consider.

I begin these reflections with a confession: I am a lawyer. However, unlike some theologians and scholars of my acquaintance, I do not believe that my legal education and experience represent any detraction from, or diminishment of, my role as a priest and scholar in the church.

I have had a passion for the law and a commitment to justice for as long as I can remember-and, once I discovered its existence as I was finishing high school, a concomitant passion for and interest in the canon law. Eventually I asked my bishop about vocations in the church for canon lawyers and he told me that there was no formal degree program to prepare a person to serve as a canon lawyer in the Episcopal Church. He advised me to do what many others have done: to study secular law with the thought of, perhaps, eventually serving as a diocesan chancellor. So, in the end, I changed my intellectual focus, leaving a doctoral program in church history at the University of Chicago to study law, and although I have occasionally regretted not finishing that Ph.D., I have never rued the day I chose to study law or the years that followed when I served as counselor and advocate. Indeed, as I sometimes enjoy reminding people, the law has a permanence to it much as the priesthood does: for, although I'm not prepared to argue for ontological change upon admission to practice, unless one fails to pay the required bar dues, or violates some other rule of conduct or practice, one remains a lawyer forever. I continue to believe that the law is an honorable profession and that it is possible to be both a person of honor and an attorney. Having said this, I will also admit that my interest in the intellectual life, the life of the mind that is so much a part of our Anglican tradition, is also an integral part of my vocation as priest and scholar and has led me to study many other things, far afield from the practice of law. To be sure, I have become one of the luckiest people I know because something I love has actually returned to ecclesiastical fashion. For better or for worse, the church has begun to reexamine the role of law in our common life-and, now that I have confessed my prejudices, I would like to share some further reflections with you about how we might do this even more effectively.

Robert Hughes asked the question yesterday: what do we mean by law and how does it shape the church? He distinguished the pastoral from the juridical and also focused our attention on the very real existence of different legal theologies. Jonathan Glass and Gary Hall have placed this discussion squarely in the midst of the church's communal life and I think their drawing of the theoretical into the concrete is immensely valuable. When Glass discusses the dual accountability to both church and civil authority with which all religiously affiliated independent schools must live, he reminds us that we have much we can still learn about living in the tension created by such dual accountability simply by broadening our perspectives and becoming willing to listen to voices we might not have previously considered. Hall, in reflecting on the evolution of Title IV of the American canons, has also recognized the profound shift in our understanding and definition of clergy misconduct, which he has identified as moving from deviations in doctrinal matters to charges of "conduct unbecoming a member of the clergy." As I have gathered together my reactions to their work, and listened to the presentations, questions, and comments made here yesterday, I think we need to address another, more fundamental, bit of business: we need to define some of our terminology. What does our language mean when we attempt to talk about law and theology? About community and faith and grace and sin? We have heard much from the theologians-and I wish now to speak for the lawyers. Therefore, with respects to Cardinal Newman, I offer this apologia pro lege canonica.

Yesterday and today I have heard many of my esteemed colleagues here refer to the "common law" in their presentations and, in so doing, speaking of it as being in opposition to the "Roman" law. Lawyers and legal historians understand "common law" in an additional, different, sense. I think it is crucial to examine our use of such a foundational term because its meaning is central to a more complete understanding of why we are the way we are as an American Episcopal Church.

When lawyers speak of the common law, we mean that body of law that is derived from legal cases, understanding it in opposition to statutory law, which is created by properly constituted legislative bodies. Both the common law (as the body of case law which provides precedent for future decisions) and statutory law (which is the basis upon which cases are often decided) are part of the common law system-for an explanation of which we must look back to our English roots. In England, the common law is also understood as the body of case law which forms a precedent to guide judges in the deciding of causes of action brought before them-but, historically, common law in England was understood, not in opposition to Roman law, but in opposition to laws of special concern-of particular subject matter jurisdiction, we lawyers might say. Admiralty law falls into this latter category-as does forestry law-as does canon law. These non-common law laws find some of their sources in Roman civil law-but this Roman civil law is composed, not only of statutory law, the decrees of the emperors, but also of legal opinions which were hypothetical and not based on specific cases. So, "Roman" law was not strictly statutory and "common law" is comprised of decisions, which interpret the particular applications, or violations, of statutory law. Confused? Let me muddy the waters a little further.