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"But It Shall Not Be So Among You": Some Reflections Towards the Reception of the Windsor Report within ECUSA
Anglican Theological Review, Fall 2005 by Grieb, A Katherine
Can our biblical texts and legal traditions help us to assess the wisdom of the Windsor Report's recommendation for tighter structures and more formal procedures? Among other texts, the two rival accounts of how Israel got its first king form an important precedent for today's conversations about covenant and centralized authority. Similarly, the long conversation with text and tradition that comprises biblical interpretation has dynamics like the classic law/equity debate stemming from British common law and analogous discussions about interpreting the United States constitution and congressional statutes. The Windsor Report wisely bases its primary arguments on Paul's insistence that church unity is both commanded by God and worth the hard interpersonal and cross-cultural work it demands of us all. Nevertheless, a subsidiary theme of the Report hinting that our difficulties could be solved by increased legal structure threatens to undercut that powerful theological vision.
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Before attending seminary, I studied law. During the first semester of law school, in a course on contracts and remedies, we were introduced to the ancient English distinction between law and equity. To oversimplify greatly, the tradition of common law developed in the civil courts, while the remedies associated with equity originated in ecclesiastical courts. Law regarded only what was contained within "the four corners" of a legal document: if the defendant had in fact signed the contract and subsequently defaulted, then the court would find for the plaintiff and apply the legal penalty. The justice of law is traditionally blind to the identity of the parties and to external factors. Law focuses on the facts of the case as contained in the contract itself.
Equity, on the other hand, claimed the right to notice other extenuating circumstances that were relevant to the case and to suggest more appropriate remedies. The equitable tradition of church law insisted that if the defendant could hardly read or did not understand the nature of a contract, and if the plaintiffs sales agent had made misleading statements designed to confuse or apply undue pressure to sign, and if the plaintiffs company had a long history of exploiting those who were poor, powerless, and illiterate, these factors, external to the "four corners," were relevant to the question of justice between the parties. Equity asks whether penalties should be applied against corporate greed (even though the companies might be operating entirely within the law) instead of against poor and poorly educated persons (who had admittedly signed the contract and subsequently defaulted exactly as the plaintiff had claimed). This debate goes on today with respect to the aggressive marketing of credit card companies, their targeting of poor credit risks, subsequent collection practices, and the proposed tightening of bankruptcy laws.
The tendency of law is to try to abolish equity by increasing legislation and adding structure. The apparent solution to the perceived problems of flexibility and ambiguity is tighter control, greater specificity. More statutory law, designed to give the courts less room for interpretation, is the consistent response of law to equity. Law values conservation and predictability, so important to the corporate world, over reforms that call its established ways of operating into question. But without equity, it is difficult to see how law would ever question its own assumptions or initiate reforms of its own practices.
Seminary and subsequent biblical studies have increased my appreciation of these complex dynamics. Whereas the landowner surely has the right to harvest all the way up to the four corners of the field, something like equity urges that the edges of the fields be left for the poor to glean (Deut. 24:19-22). Credit card companies would blanch at the idea of a Jubilee year when debts were forgiven (Lev. 25), but a reference to that equitable adjustment is engraved on our Liberty Bell. When Judah says of Tamar that she is "more in the right" than he is (Gen. 38:36), even though he has just condemned her to death under law for her actions, his reversal of the judgment depends on something like a notion of equity. Even the concept of "civil disobedience" promulgated in Acts 5 ("We must obey God rather than people") has its origins in the biblical equivalent of "equity": it assumes that those in power are not likely to question their own assumptions and may be blind to issues outside their own self-interest. Article XIX of the Articles of Religion applies this idea to the government of the church as well when it insists that "As the Church of Jerusalem, Alexandria, and Antioch have erred; so also the Church of Rome hath erred, not only in their living and manner of ceremonies, but also in matters of Faith." The very notion of the church as something which is semper reformanda (always to be reformed) assumes that at least sometimes the church shares in the blindness of the world around it.
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