30 November 2011

Of Advent Letters and Archbishops

The Archbishop of Canterbury has sent an Advent letter to the Primates of the Anglican Communion, and released it on his website so the rest of us can read it. In summing up the year, he tells some moving stories and gives several examples of ways in which the Anglican Communion has been a source of mutual support in the past year. All of this is good and interesting reading. I commend it.

There is a bit, however, that I take some issue with, having to do, in case you hadn't guessed, with the proposed Anglican Covenant. The Archbishop writes:

This of course relates also to the continuing discussion of the Anglican Covenant. How it is discussed, the timescale of discussion and the means by which decisions are reached will vary a lot from Province to Province. We hope to see a full report of progress at next year’s Anglican Consultative Council (ACC) meeting. In spite of many assurances,some Anglicans evidently still think that the Covenant changes the structure of our Communion or that it gives some sort of absolute power of ‘excommunication’ to some undemocratic or unrepresentative body. With all respect to those who have raised these concerns, I must repeat that I do not see the Covenant in this light at all. It sets out an understanding of our common life and common faith and in the light of that proposes making a mutual promise to consult and attend to each other, freely undertaken. It recognizes that not doing this damages our relations profoundly. It outlines a procedure, such as we urgently need, for attempting reconciliation and for indicating the sorts of consequences that might result from a failure to be fully reconciled. It alters no Province’s constitution, as it has no canonical force independent of the life of the Provinces. It does not create some unaccountable and remote new authority but seeks to identify a representative group that might exercise a crucial advisory function. I continue to ask what alternatives there are if we want to agree on ways of limiting damage, managing conflict and facing with honesty the actual effects of greater disunity. In the absence of such alternatives, I must continue to commend the Covenant as strongly as I can to all who are considering its future.
Although I don't imagine this blog is bookmarked at Lambeth Palace, I should like to respond to some the Archbishop's points.

How it is discussed, the timescale of discussion and the means by which decisions are reached will vary a lot from Province to Province.

Yes, that's true. Some Provinces, evidently, are taking the proposed Covenant very seriously, submitting it to careful theological and legal analysis, and then considering it in light of those analyses. Others, it would appear, are content simply to rush the Covenant through their Synodical processes with little more than a heavy-handed sales pitch and an appeal to people's loyalty to their Primate. I'm not sure what's meant to be democratic about pushing people to vote without adequate information. Natural Justice requires that we hear the other side. But then, why should I be surprised that the process to adopt a document which violates the principles of natural justice should be remotely interested in following those principles itself.

In spite of many assurances, some Anglicans evidently still think that the Covenant changes the structure of our Communion or that it gives some sort of absolute power of ‘excommunication’ to some undemocratic or unrepresentative body.

Er, that would be people like me, I imagine. But then, I've read the document and analysed it, rather than simply rely on unsupported “assurances” to form an opinion.

With all respect to those who have raised these concerns, I must repeat that I do not see the Covenant in this light at all.

I do wish that the Archbishop would ask someone to respond to the sorts of concerns that I and others have raised, and perhaps even offer a rationale or argument in favour of the Covenant. “No it isn't” is not an argument, it's mere contradiction.

It outlines a procedure, such as we urgently need, for attempting reconciliation and for indicating the sorts of consequences that might result from a failure to be fully reconciled.

Well, actually, it outlines the rough idea of a procedure, which is so vague that it's practically useless, to make arbitrary decisions based on unclear criteria whether a given decision or action of a given Province is or is not “incompatible with the Covenant.” And, although it threatens “relational consequences” it doesn't define them, so the Archbishop is incorrect to say that it indicates any “sorts of consequences.” The process, such as it is, is a recipe for arbitrariness.

It alters no Province’s constitution, as it has no canonical force independent of the life of the Provinces.

In a word, poppycock. An Act of Synod adopting the proposed Covenant makes it law for that Church in exactly the same way an Act of Parliament (or equivalent) adopting an international treaty makes the treaty law for the country. And, in the same way, it commits that Church to abide by the undertakings contained in the Covenant, if it can figure out what they are, given that they are not clearly defined. In making this commitment, the adopting Church will be ceding jurisdiction in at least some areas of it life. If that doesn't imply a change to the constitution, I don't know what does.

It does not create some unaccountable and remote new authority but seeks to identify a representative group that might exercise a crucial advisory function.

Well, that's partially correct. The proposed Covenant does not create a new body. The new body (the Standing Committee) was created in the course of the development of the Covenant text, though I must confess to being a bit vague on the process by which the body was created. And, if it's not unaccountable, at least its accountability is circular, given that it consists entirely of members of the two bodies to which it is purported to be accountable, and given that its chair is also the chair of one of those bodies and the president of the other. And surely, its powers are more than merely advisory. And arbitrary, given the complete lack of definition of criteria or process for it to do its work. And because of the overlapping roles in the Standing Committee and other bodies, it is intrinsically incapable of producing fair decisions. See “judiciary, independent” or “powers, separation of.”

I continue to ask what alternatives there are if we want to agree on ways of limiting damage, managing conflict and facing with honesty the actual effects of greater disunity. In the absence of such alternatives, I must continue to commend the Covenant as strongly as I can to all who are considering its future.

Ah yes, TINA. We've heard that before. Actually, the good Archbishop has come up with an excellent alternative himself: indaba. It would be interesting to give that process time to work rather than continuing to push the hard sell of a dodgy Covenant.

I enjoyed reading most of the Archbishop's letter. I appreciate and value the Anglican Communion, and his travelogue only underscores that value. It's a pity that he took the opportunity, like a latter-day Cato the Elder, to use the letter to push the proposed Covenant. Let us study it, Archbishop, and each according to our own procedures come to an informed decision without being told from above how to vote.

The Archbishop advises that the Communion needs “a sustained willingness on the part of all Provinces to understand the different ways in which each local part of the Anglican family organizes its life.” Yes. Good advice. Perhaps it should start with Lambeth Palace.

Happy Advent, Archbishop. And, in case I don't get a chance, Happy Christmas, too.

24 November 2011

Logs and Specks

The proposed Anglican Covenant mentions accountability three times (Sections 2.2.1, 3.1.2, and 4.2.1). Section 3.1.2 speaks of “autonomy and accountability” which seems at first glance to be a pair of competing interests held in tension. The question is, what exactly is meant by accountability? The term is undefined in the proposed Covenant text, which shouldn't come as much of a surprise: no term is defined in the text.

Colloquially, when we speak of accountability we often mean it punitively, as in the phrase “hold someone accountable.” There's an overtone of “make someone pay for what (s)he has done wrong” or “stop the person from doing the offensive thing.” Certainly that use of the term has been evident in the recent tensions in the Anglican Communion. But there may be another way to understand accountability. The Shorter Oxford English Dictionary gives the primary definition of accountable as “liable to be called to account,” which certainly sounds like the colloquial use of the term at first blush. But I want to suggest that it might simply mean that one may be required to explain one's decisions or actions to someone else. If that is what is meant in the proposed Covenant, then it suggests that, when asked, a covenanting Church undertakes to supply an explanation of an action about which another covenanting Church raises a question. But the process of determining whether a “controversial action” is “compatible with the Covenant” indicates that simply supplying an explanation is not enough. It is clear that the explanation will be judged by the Standing Committee as to whether it is acceptable or not. And in the latter case, “relational consequences” will ensue.

Adopting the proposed Covenant, then, implies an undertaking not simply to be prepared to offer an explanation of a Church's actions when asked, but to supply a satisfactory explanation or suffer the consequences. “Satisfactory” and “consequences” are, of course, undefined.

A second question that comes to mind is whether the obligation under mutual accountability is one-way or two-way. That is, does adoption of the proposed Covenant imply undertaking to supply a satisfactory explanation of any given action or decision, or does it also imply undertaking to demand such explanation of others – to hold them accountable? In other words, is the right to raise a question pursuant to the dispute settling process of section 4.2 permissive only, or is it obligatory?

In the Sermon on the Mount/Plain Jesus asks “Why do you see the speck in your neighbour's eye, but do not notice the log in your own eye? Or how can you say to your neighbour, 'Let me take the speck out of your eye,' while the log is in your own eye? You hypocrite, first take the log out of your own eye and then you will see clearly to take the speck out of your neighbour's eye.” (Matthew 7:3-5 // Luke 6:41-42)

The proposed Covenant is about logs and specks. It's about being empowered, and possibly even obligated, to look for the specks in others' eyes, which will inevitably give rise to others pointing to logs in one's own eyes. The trouble, as Jesus suggests, is that it is often much more interesting to look for specks than to deal with one's own logs, and in fact it's human nature to be in denial about one's own logs.

I wouldn't suggest that other Churches in the Anglican Communion should never be permitted to ask what's going on with a given action or decision, and my own Church, the Anglican Church of Canada, has been quite prepared to give an account of its deliberations, discussions and decisions. Transparency is a good thing. But do we really want a binding treaty that encourages, and possibly even requires, the search for specks in our neighbours' eyes?

08 November 2011

Autonomy versus Communion?

Another instalment of the Living Church's series of pro-Covenant articles has appeared while my attention was diverted. In his article, From Autonomy to Communion, Bishop Titre Ande Georges, of the Diocese of Aru in the Democratic Republic of Congo, compares the Anglican Communion to the Eglise du Christ au Congo (ECC), of which his Church is a member. The ECC, says Bishop Georges, is a loose federation with an unclear ecclesial identity and no clearly defined body of doctrine. It is, says Bishop Georges, not so much a Church as an ecclesial social club suffering from a severe ecclesial deficit.

So, too, says Bishop Georges, with the Anglican Communion. He suggests that the Anglican Communion is an equally loose federation of Churches without a clearly defined statement of faith and no central authority. He correctly states that “There has never been a normative statement of faith binding each of the national churches in the Anglican Communion, nor a central source of authority.” Whether this is a problem is where I respectfully disagree with the good Bishop. For I do not believe that he is correct to say that, “ 'Communion' has been merely a matter of social fellowship between autonomous churches, fostering spiritual and social bonds of affection. ” It is true that the Churches of the Anglican Communion are autonomous, but this autonomy is a strength rather than a problem. And communion is surely about more than “spiritual and social bonds of affection.” The Churches of the Anglican Communion are in a relationship of full communion with each other, albeit a communion which is impaired in certain areas. It is not clear from the ECC website whether there are any marks of full Communion, notably mutual recognition of orders, among the member churches. But that is certainly a mark of the relationship among the Churches of the Anglican Communion.

As I have argued previously, it is unfortunate that the proposed Anglican Covenant does not contain a definition of communion. But if it means anything in our context surely it means that we recognize the full authenticity of the Church in all its marks in each other, and that we (generally) accept the validity of the sacraments, and especially of the ordination conferred in each of the member Churches. (There is the anomaly that some Churches do not accept ordination of women or ordination by women. But with those exceptions, a bishop, priest or deacon in one Anglican Church is accepted as such in any other Anglican Church.) So, with respect to the Bishop, the nature of the relationship among the Anglican Churches is different from, and deeper than, the relationship among the member churches of the Eglise du Christ au Congo.

The “ecclesial deficit” of which Bishop Georges speaks stems from a collective identity crisis and an inability to “speak and act as one coherent ecclesial body”, and so “our ecumenical partners are frustrated” evidently because they expect the Anglican Communion to do so. But are these really problems? Is not a multiplicity of voices a necessary corollary of being a diverse communion of Churches? It may be that Bishop Georges and certain, unspecified, ecumenical partners would prefer a more uniform global Church over a diverse family of Churches, as long, presumably, as this uniform Church espoused the same doctrinal positions as Bishop Georges. But this is precisely the problem with the proposed Anglican Covenant: it is uniformitarian in its essence, designed to place the member Churches of the Anglican Communion on a Procrustean bed of uniformity. But we must not confuse uniformity with unity; it is the illusion of unity. True unity, the kind of unity to which God calls us, and for which Jesus prayed, is the coming together of diverse people in a common mission, revealing the multifaceted love of God for humanity in all its diversity in celebration, not annihilation, of that diversity. It is the kind of unity to which the Eglise du Christ au Congo apparently aspires. It is the kind of unity depicted by the Second Vatican Council. It is the kind of unity reflected by the Anglican Communion at its best. And this kind of unity is foreign to the Anglican Covenant.

As with other authors in this series of articles, Bishop Georges uses the Anglican Covenant as a screen on which to project his vision of the Anglican Communion. He asserts, but does not attempt to demonstrate, that the proposed Covenant will enable the Anglican Communion to grow, or in this case shrink, into his vision. Sadly, I think in this case he may well be correct. The Covenant is indeed designed to produce an Anglican Communion along the lines that Bishop Georges describes. But it will be a Communion that is too small, worshiping a God who is too small, proclaiming a false Gospel of uniformity, incapable of engaging with the beautiful diversity of humanity that is itself created to reflect the multifaceted image of God.

05 October 2011

Let's Talk

In the most recent instalment of the Living Church's series of pro-Covenant articles, Bishop Victoria Matthews, of Christchurch, New Zealand, speaks about the need for improved communication among the Churches of the Anglican Communion. Global communication, says Bishop Matthews, has changed the way in which the Anglican Communion is able to operate, and that communication is not always used effectively, as Churches from different cultural contexts fail to hear each other. What's needed is a commitment to effective communication and a protocol for that communication. Bishop Matthews raises the three-tikanga nature of her own Church of Aotearoa, New Zealand and Polynesia, which requires “very careful rules” about how the three groups relate to each other.

Wouldn't it be wonderful, suggests Bishop Matthews, if we could all commit to communicating with each other, and maintaining relationships as in the example of the New Testament, where we find Paul greeting the saints by name in his letters? “What if the requirement of the Covenant actually enforced listening and being in relationship?” she asks. In fact, asserts Bishop Matthews, “Section 4 of the Covenant exists precisely to ensure the kind of listening, communication, and relationship that is presently missing in the Anglican Communion.” (italics in original)

Yes, what if?

Bishop Matthews paints a very hopeful picture of commitment to relationships through thick and thin, and of finding ways to communicate effectively across our cultural divides. And I think that she is quite correct to say that these elements are essential to finding a way forward for the Anglican Communion. But I wish that she would take the time to demonstrate where she sees these elements in the proposed Anglican Covenant, particularly Section 4!

In fact, Section 4 does not exist to “enforce listening and being in relationship” at all! It exists to adjudicate disputes, producing winners and losers. And if it enforces anything, it does so by the threat of impairment or termination of relationships (relational consequences), which is surely the antithesis of “enforcing being in relationship.” Listening and dialogue and indaba are all wonderful things, but the proposed Covenant is in fact not designed to generate any of them, let alone enforce participation. It's about deciding who's right and who's wrong; choosing who wins and who loses; and coercing the loser to capitulate or face marginalisation or expulsion.

It is true that the Anglican Communion is in the midst of a very divisive conflict. But conflict has been a feature of the Church since the first century. For alongside his laudable greetings of the saints, Paul himself engaged in conflict, even using language that would make some modern bloggers blush.

And as to the Covenant, Bishop Matthews' article, like so many others in the series, leaves me feeling that she has treated it not as a text to be analysed, but as a screen on which to project her most fervent hopes for the strengthening of the Anglican Communion.

But the proposed Covenant is not simply a screen; it is a legal document, a binding treaty. And ultimately its value will depend not on our most optimistic hopes for the Anglican Communion, but on the use of its protocols to adjudicate disputes. If even its most ardent supporters are either unwilling or unable to show us how the Covenant is supposed to help address the very real conflict in the Anglican Communion, then why and on what basis should anyone vote to adopt this treaty?

Laudable though I find Bishop Matthews' hopes and vision for the Anglican Communion, I do not see them in the proposed Anglican Covenant. Perhaps I am not using the correct projector. I continue to wait for someone to mount a convincing argument, with reference to the actual Covenant text before us, as to how it represents an improvement on the status quo, or indeed how it will not exacerbate the conflict.

20 September 2011

In Favour of the Covenant

Several of us in the No Anglican Covenant Coalition have been concerned about the relative lack of serious arguments for the proposed Anglican Covenant. Most of the official argument for it seems to follow the narrative that a Covenant was proposed by the Windsor Report, the Primates' Meeting liked the idea, a Covenant Design Group was thus struck, a few drafts have been shown to various people such as the Anglican Consultative Council and the bishops who came to Lambeth, some comments have been received, and here's the final draft to be adopted by the Churches of the Anglican Communion. In other words, what we hear mostly is not so much an argument for the Covenant, but a narrative about its process. And that process has only one inevitable conclusion: adopt it already.

Pressed for more, we've been told that adoption of the Covenant would be an important symbol of our commitment to each other, and an affirmation of our loyalty to the Anglican Communion and the Archbishop of Canterbury. It will heal the rifts in the Anglican Communion, cure the common cold and, apparently, rescue Western civilisation.

But as to why a Covenant – any Covenant – is a desirable thing for the Anglican Communion, and how this Covenant – the proposal actually before us – will fit the bill, we are left without much argument at all. The whole thing is supposed to be so self-evident that no argument is required. And when some of us have raised some concerns the responses have tended to be along the lines of “you haven't read it” or “don't worry your pretty little head” or “There is No Alternative” or “it has no power at all, except to heal the rifts in the Anglican Communion, etc.” But, again, no argument from the actual text about what it will do, and how it will do it, and how that will help, and how the cure will outweigh its side-effects. Arguing against the proposed Covenant has felt at times like playing a football match with the other side not actually on the pitch but rather sitting comfortably on the sidelines occasionally calling out that we've got it wrong.

Happily, the Living Church has been quietly publishing a series of essays in favour of the Covenant. In fact, I had already commented on a couple of their essays before it was recently brought to my attention that they are part of a series. Lionel Deimel has collected the addresses of the essays in a convenient location, and links to them have also recently been added to the introductory essay.

To date, the series consists of sixteen essays, including the introduction to the series. The essays are from a wide variety of authors who come from a significant number of Churches in the Anglican Communion. All but one are male. The editors co-authored the introduction and each contributed an essay, but other than that duplication, every essay to date is from a different author. As the editors say, “It seems appropriate that those who are more favorably disposed to the Anglican Covenant make the case for it, addressing whatever concerns have been and continue to be expressed, in the United States and elsewhere.” The editors and the authors are to be commended for their efforts to that end.

Overall, the essays make for interesting reading, each adding a new voice to the debate, and most presenting an interesting perspective. They are a bit uneven in quality, as one might expect from such an ambitious project, but that doesn't detract from the value of the collection as a whole.

If I have one overarching criticism of the series, it's that it is primarily oriented toward a theological discussion of the idea of, or need for, a Covenant. Not that theology is unimportant, but we must remember that the proposal is not fundamentally a theological consensus document but a legal document, and it must be analyzed in that light. Only three of the essays to date even quote the proposed Covenant at all, and only one attempts anything like serious analysis of its text.

So, although I appreciate the effort to publish this set of essays, and look forward to more, I am still left searching for a coherent argument as to why this Covenant should be adopted.

I will explore some of the essays individually in the weeks ahead.

19 September 2011

Wellington says Yes

Anglican Taonga reports that the Diocese of Wellington, New Zealand, has voted to support the proposed Anglican Covenant. The report states:
The basic feeling of Synod was reportedly: "We must preserve unity, and the Covenant will help us do that. And we don't want to find ourselves no longer in full communion because we have not signed the Covenant".
Whilst I hope the Synod members came to a reasoned and informed conclusion about how the Covenant will help to preserve unity, the second part of the quote suggests to me that they were misinformed about the implications of signing or not signing the Covenant. The notion that failure to adopt the Covenant will result in being out of full communion has certainly been spread abroad as a kind of scare tactic, but it is not supported by the text of the proposed Covenant itself. Consider section 4.1.4:
Every Church of the Anglican Communion, as recognised in accordance with the Constitution of the Anglican Consultative Council, is invited to enter into this Covenant according to its own constitutional procedures.
Note: that's “invited” and not “required”. Each Church's constitutional procedures surely allow for a vote to reject the Covenant.

Then there's section 4.1.5:
The Instruments of Communion may invite other Churches to adopt the Covenant using the same procedures as set out by the Anglican Consultative Council for the amendment of its schedule of membership. Adoption of this Covenant does not confer any right of recognition by, or membership of, the Instruments of Communion, which shall be decided by those Instruments themselves.
So, if adoption of the Covenant does not imply membership in the Anglican Communion, neither does rejection of it imply impairment of communion, and certainly not expulsion from the Communion. The fact is that we cannot predict what other Churches might say or do in response to a principled rejection of the proposed Covenant. But each Church must come to its own conclusion about the matter without coercion or scare tactics. If a Church's General Synod (or equivalent) comes to a reasoned, informed conclusion that it is best to adopt the Covenant, then it should do so. But I would hope that any decision, for or against, is based on a thorough study of the proposed Covenant and a clear and well-informed understanding of the document and its implications. And I would hope that misinformation, such as the canard that a vote against the Covenant is a vote against the Anglican Communion, is clearly left out of the equation.

31 August 2011

Why I Oppose the Anglican Covenant

About nine months ago, when I began this blog, I set out to explore a series of questions I had about the proposed Anglican Covenant, and to present the resulting analysis as a resource for others who were considering the document. I had already done enough preliminary analysis of the proposed Covenant to conclude that it was not a helpful document, so it would be fair to suggest that I was already biased against the Covenant. Nevertheless, I was not unalterably opposed to some kind of Covenant or agreed document, although I would have required some very serious convincing that this was the correct avenue to addressing the conflict and divisions in the Anglican Communion. (All the more so now that I have done some in depth analysis!) My concern in putting some thoughts into the aether was for the good of the Anglican Communion. I am a committed Anglican, and my Church, the Anglican Church of Canada, is an active and committed member of the Anglican Communion.

I set out to analyze the proposed Covenant primarily from the perspective of Canon Law, which is my area of interest. I hold a Master's Degree in Canon Law from Cardiff University, though I haven't made mention of it to date on my blog, in the hope that my arguments would rest on their own merit, and not on some perceived claim to status or expertise. For in the end, either my analysis is logical and demonstrably valid or it is not, and my credentials will not make any difference.

When I began my quest, I jotted down a half dozen questions about the proposed Covenant, mainly about the dispute-settling process in section 4.2. I thought that after writing six or eight blog posts I would sum them up with a post such as this one. Little did I know that more questions would arise with respect to the proposed Covenant, and that I would write over 30 articles about it!

Supporters of the Covenant have noted correctly that the preponderance of arguments against it focus on the shortcomings and concerns about section 4.2, the dispute-settling mechanism, They sometimes conclude from the relatively small number of concerns about sections 1-3 that these sections are perfectly fine. That is an incorrect conclusion. Sections 1-3 may be in the main less objectionable than section 4.2, but they do have some serious problems, as I have attempted to demonstrate. This was made even clearer to me because of the sequence in which I analysed the proposed Covenant.

Most people who seek to do a study of the Covenant start at the beginning, and begin reading it as a kind of theological consensus document. On this reading, most people will find little objectionable in section 1, not much objectionable in section 2 and a few points of discomfort in section 3. It's when the reader gets to section 4, which has a very different tone to it, that most people begin to get concerned. It's as though there were two documents: a theological consensus statement in sections 1-3, and a legal document in section 4. And many critics conclude that they could live with the first document – even if it's imperfect – but would prefer to drop the second. I began analysing the proposed Covenant with section 4, and then for completeness moved on to the first three sections. So in reading the first part of the Covenant the key question in my mind was not whether I could agree with what the document said as a consensus statement, but how sections 1-3 form a basis for the process in section 4.2. In other words, I read sections 1-3 not as a separate document of a different genre from section 4, but as an integral part of a whole legal document. And that approach revealed a number of serious concerns with sections 1-3.

So, to my concerns. In what follows I will provide links to relevant articles elsewhere on this blog to allow the reader to explore my arguments in more depth.

My first concern about the proposed Covenant has nothing to do with the text itself, but with the very proposal for a Covenant. The idea that it might be desirable to have some kind of agreed document laying out what it means to be an Anglican, and including some commitments and a dispute-settling mechanism was put forward in the Windsor Report. Most of the Anglican world seized on this idea and accepted it in a rather uncritical manner. In so doing, we bypassed the necessary question of Instrument Choice, that is to say, of whether this sort of approach is in fact the best vehicle to address the very real conflict that the Windsor Report described. In uncritically accepting the desirability of a Covenant, we ignored a number of crucial questions.

Turning to the text itself, this time in sequence, there are difficulties with every section of the proposed Covenant, some relatively minor and others which are significant enough to be deal breakers all by themselves. Section 1 of the proposed Covenant seeks first to define the faith in terms of existing documents such as the Chicago-Lambeth Quadrilateral and the historic formularies of the Church of England. It then goes on to commit signatory Churches to conform to this normative definition of authentic Anglican faith and any future developments. There are two principle problems with this section. First, the definition of the faith is sufficiently elastic and imprecise that whether a given development of the faith fits the norm will always be a matter of interpretation. And secondly, the commitment to live up to this norm, which pays lip service to the varying contexts in which the Churches of the Anglican Communion find themselves, does not adequately account for those contexts and how they will shape both interpretation and development of the faith. We must remember that this section is the foundation of the standards against which any “controversial action” will be judged. The question is whether the standards are sufficiently clear that such judgment will be demonstrably fair and credible, and more or less universally acceptable. Section 1's lack of clarity leaves the standards far too vague, which will inevitably lead to conflict over whether the Standing Committee's interpretation of a given Church's action is fair to that Church in its context.

I have suggested that section 2 of the Covenant text is probably the strongest part of the whole document, speaking to the vocation and mission of the Churches of the Anglican Communion. Centred on the Marks of Mission, this section speaks of the call to engage with the world around us to collaborate in God's mission to establish God's reign. (Section 2.1.4) But in quoting the Marks of Mission, section 2 also distorts them by adding a very definite gloss to each one. As with questions of the interpretation of the faith in various contexts, this gloss of the Marks of Mission assumes a single, monolithic interpretation of the mission of the Churches in their various contexts. Section 2 starts well but ends on a sour note.

Section 3 of the proposed Covenant, which addresses the question of how the Churches of the Anglican Communion live together, has a series of difficulties. This section speaks of living together in communion and describes the Instruments of Communion, though it never actually defines what it means by “communion”. But, as I have said, “there is one fundamental problem with this whole section of the proposed Covenant, and that is that it seems to assume both that Churches will have a tendency to act in a manner which is irresponsible, or that their mechanisms for discernment and consultation are inadequate. And it seems to assume that relations among the churches of the Anglican Communion will normally be marked by conflict.” In fact, those assumptions underlie the entire proposed Covenant, which says much more about the context of our current conflict than about our aspirations for life as an Anglican Communion.

And how to sum up the problems of section 4, which are legion?

Section 4 provides mechanisms for adopting, withdrawing from and amending the Covenant as well, most controversially, for dealing with disputes among signatories.

To begin at the beginning, Section 4.1.3 claims (echoing section 3.2.2) that adopting the Covenant will not affect the constitution or canons of a Church, nor impede its autonomy. Poppycock. The very purpose of the Covenant is to restrict the way in which the signatories exercise their autonomy. And by adopting it, those Churches will be sewing it into their ecclesiastical law. Indeed, adopting the Covenant will imply ceding jurisdiction over a number of matters. And still on the topic of adopting the Covenant, it doesn't seem to contemplate any minimum number of Churches required for the Covenant actually to come into force. Instead, it is in force for a Church as soon as it adopts it. Thus, for example, when Mexico became the first Church to adopt the Covenant, it was in force. Mexico could have raised a question about the activities of another Church, except that there wasn't another Church that had adopted the Covenant. In theory they could have amended it, too. Which would have been absurd.

As to the question of withdrawing from the Covenant, there is a naked threat that doing so can result in “relational consequences” or punishment for the Church that withdraws. How this logically can occur is a mystery.

And what to say of the dispute-settling mechanism? It provides for a process by which “controversial actions” can be assessed and, if such actions are determined to be “incompatible with the Covenant,” impose “relational consequences” on a Church that refuses to withdraw the offending action. But this process has more holes than Swiss cheese. For starters, there is no definition of what might constitute a “controversial action.” You might imagine that it would be something that is contrary to the standards of faith, but since, as mentioned above, these standards are not clearly defined, we're really no further ahead. Nor are “relational consequences” clearly defined. So we don't really know what the rules are or what the punishment is for violating them.

And if the standards are vague and the punishments undefined, the process itself is unclear. For example, it's not even clear how a Church with a question even starts the process rolling! What is clear is that the process violates the fundamental principles of Natural Justice, as I have demonstrated in a two-part analysis here and here. The trouble here is that we have a process which is ill-defined, vague, and demonstrably unjust. Not only is this a recipe for arbitrariness, these flaws in the process undermine any shred of credibility of any decision made by the Standing Committee pursuant to its powers in the proposed Covenant.

This is not an exhaustive analysis of the proposed Covenant, though I think it is fairly extensive. There are other questions that might be asked of it, and no doubt I will continue to do so in the weeks and months ahead. But I hope that it is clear that there are some very grave problems with the proposed Covenant, which must be weighed by any Synod in deciding whether or not to adopt it.

And what of the other side? What are the arguments for the Covenant? I wish I knew! In fact, I have seen a few attempts to defend the Covenant, for example by claiming that the punishments in it (relational consequences) are not in fact punitive. Then there is the claim that it actually won't make any difference at all (except that adopting it is vital to the life of the Anglican Communion!) Hmmm.... “this placebo will save you from your terminal disease.” And of course there is the claim that There Is No Alternative. But beyond these claims and an assertion that adopting the Covenant will demonstrate our loyalty to the Anglican Communion and the Archbishop of Canterbury, there has been very little put forward as a convincing argument for the proposed Covenant. Which raises a number of serious questions:

If there is no significant argument for the Covenant, why adopt it? If its adoption is merely symbolic, why not choose another symbol? If its dangers are even partially as bad as I have suggested, in what way are these outweighed by whatever benefits might come from the Covenant? Are there any benefits? And is there not an onus on those who would propose significant change in the Anglican Communion to make a convincing case for that change?

I oppose the proposed Covenant because I do not believe that it will benefit the Anglican Communion, and worse because it risks weaponizing the already serious conflict among the member Churches. I oppose it because in place of a mechanism to build up the Communion it provides a dispute-settling mechanism that is vague, arbitrary, and demonstrably unjust. I oppose it because, on the basis of careful analysis, I believe that it will cause serious and possibly irreparable harm to the Anglican Communion to which I am committed.

23 August 2011

Send in the Theologians

Andrew Goddard has written a defence of the controversial fourth section of the proposed Anglican Covenant. Goddard focuses on the fourth section because, as he correctly notes, it “for many is most troublesome. It was the section which changed the most through the various drafts and the section which continues to be most objectionable to critics of the Covenant.” Of course, as Goddard notes, it is really section 4.2 that is the most controversial part. Sections 4.1, 4.3 and 4.4 on adoption of, withdrawal from, and amendments to the Covenant are less controversial and necessary in some measure. Not that these are perfect, but they do seem to be necessary elements of a Covenant if one is to be adopted. Not much controversy there. Move along.

But what of section 4.2? Well, it's self-evident that some kind of dispute-settling mechanism is necessary in an agreement in case someone breaks it. Really, Dr Goddard? It's funny that such a notion never occurred to the authors of the Porvoo Common Statement. But, asserts Goddard, “if we covenant together by making joint affirmations and commitments to one another then someone is clearly wronged if another party to the covenant denies those affirmations or breaks commitments.” Actually, it's not at all clear that “someone is wronged” in such circumstances. The whole idea of a Covenant emerges from a very nasty conflict over who is allowed, and at what level of the Anglican Communion, to determine what constitutes legitimate development of the faith and practice of the Anglican expression of faith. The conflict exists because: (1) some churches have described developments in some other churches as tantamount to denying or illegitimately altering the faith; and (2) because those churches claim to have been wronged or injured or aggrieved as a result of said developments. But in fact, the first claim has not been satisfactorily proven. And the claim to be wronged has never been demonstrated, but merely asserted. Yes, these churches, or at least their leaders, do seem to be genuinely upset. But being upset or offended is not the same as being wronged. So in fact, Goddard's assumption is at the very least open to debate.

But if the need for a dispute-settling mechanism in the proposed Covenant is not so self-evident as Goddard would have us believe, the process itself is not as benign as he depicts it, either. Goddard tells us that “part of the aim of the Covenant has always been to discern if we can agree together what is to be done in such circumstances rather than having to make up processes in the context of addressing the conflict.” Well, if such a mechanism were necessary, it would certainly be better to have a clear process in place in the event of a dispute than to make it up as we go along. But in fact the whole process of developing the Covenant has been an exercise in making it up as we go along. And, as I have shown, the process the Covenant proffers isn't very clear at all, and in fact will lead to rather a lot of improvisation.

And not only is the process vague, but the role of the Standing Committee is not as benign as Goddard would have us believe. Goddard tries to reassure us that the Standing Committee is not some kind of Star Chamber. But he's not very convincing.

Goddard suggests that “the Covenant both embeds the standing committee within the wider structures of the Communion but also severely constrains its powers.” For evidence he cites the provisions in section 4.2.2 that the Standing Committee is responsible to the Anglican Consultative Council and the Primates' Meeting and that it “shall be supported by such other committees or commissions as shall be mandated to assist ... and to advise it....” But far from giving comfort these two points are worrisome. First, the Standing Committee is indeed responsible under the Covenant to the Anglican Consultative Council and to the Primates' Meeting. But let us recall the composition of the Standing Committee. It is made up entirely of people who are members of either the Anglican Consultative Council or the Primates' Meeting. Or both in at least one case. So if this is accountability it is circular.

Secondly, it is not at all clear what “other committees or commissions” might “be mandated” to assist and advise the Standing Committee, nor by whom they might be mandated, nor with what role. Is the Standing Committee bound to receive their assistance and to accept their advice? And what of the Standing Committee's discretion to “take advice from such bodies as it deems appropriate” in doing its work? (Section 4.2.4) In fact, the Standing Committee has complete discretion to consult whomever it sees fit to consult, or no-one, in coming to its conclusions. And given that it has no criteria to follow either in determining whether a controversial action is “incompatible with the Covenant” or what “relational consequences” should ensue, the whole process is bound to be arbitrary.

Ah, soothes Goddard, but the Standing Committee has no real power anyway, merely to request that a Church defer a controversial action, and to recommend relational consequences. (Section 4.2.5) And, of course, declare an action or decision “incompatible with the Covenant.” (4.2.6) But, says Goddard, “it cannot do these on its own initiative but only 'on the basis of advice received from the Anglican Consultative Council and the Primates’ Meeting' (4.2.6)” Actually, that's not clear from the text at all. For one thing, the Standing Committee is not necessarily required to solicit the advice of the Anglican Consultative Council or the Primates' Meeting. The Standing Committee has discretion to consult whomever it pleases, and to determine whether it is appropriate to include either of its parent bodies in that list. Section 4.2.6 seems to assume that the Standing Committee will have received some advice from these two bodies, but what if it has not? Or what if the advice of one of these two bodies is incompatible with the advice of the other? It does not follow that the Standing Committee is precluded from coming to is own conclusions on the matter at hand.

And even if Goddard's reading were correct, let us recall the circularity of the whole set-up: members of the Anglican Consultative Council and the Primate's Meeting consult their own groups and confer together to come to a conclusion, and then to make recommendations back to those bodies, which will determine whether or not to act on those recommendations. They are consulting themselves, advising themselves and then making recommendations to themselves. There is a word for that: overlapping roles. And overlapping roles is a violation of the principle of nemo judex in sua causa debet esse (“no-one must be a judge in his own case”), a fundamental principle of Natural Justice. The problem here, as I have shown, is one of institutional bias.

If the absolute discretion given to the Standing Committee to act without criteria, consulting whom it pleases following a vague process, and then issuing its decisions does not make it a Star Chamber, then I don't know what would. Section 4.2 is a recipe for improvisation and arbitrariness. And even if in this improvisation the Standing Committee manages by happenstance to fulfil the requirements of the first principle of Natural Justice (audi alteram partem – “hear the other side”), given the overlapping roles of Anglican Consultative Council, Primates' Meeting and Standing Committee (not to mention Archbishop of Canterbury, who is a member of all three!) section 4.2 of the proposed Covenant violates the second principle of Natural Justice.

The No Anglican Covenant Coalition has put out a public call for the best arguments in support of the proposed Covenant. So, send in the theologians. I'm sure that Andrew Goddard is a very competent theologian. But his comments on section 4.2 of the proposed Covenant suggest that he is out of his depth when it comes to international canon law. We really shouldn't send a theologian to do the job of a canonist.

09 August 2011

Withdrawing from the Covenant

Section 4.3 of the proposed Anglican Covenant allows for a Church that has adopted the Covenant to withdraw from it. As autonomous entities, it is obviously the right of any Church to reverse a decision to adopt the Covenant. One can imagine a number of reasons why a Church might decide to do so.

For example, it might be that a given Church decides reluctantly to adopt the Covenant for political reasons rather than because of the merits of the document itself. Certainly this course of action has been suggested. No-one relishes the optics of rejecting the Covenant, given that any Church doing so is likely to be depicted as self-centred, not a team player, and not really committed to the Anglican Communion. So a Church that is of a mind to reject the Covenant on principle might decide to avoid that reaction, hold its collective nose, and adopt it anyway. Perhaps in doing so such a Church might hope to introduce some subsequent amendments to make the Covenant less unpalatable. But if attempts to amend the Covenant prove fruitless, the Church might decide that it would have been better not to adopt it in the first place and withdraw. Of course, there would be some optics to deal with in that event.

Section 4.3 reads:
Any covenanting Church may decide to withdraw from the Covenant. Although such withdrawal does not imply an automatic withdrawal from the Instruments of Communion or a repudiation of its Anglican character, it may raise a question relating to the meaning of the Covenant, and of compatibility with the principles incorporated within it, and trigger the provisions set out in section 4.2 above.
So, withdrawal from the Covenant is explicitly stated to mean nothing more than that. It doesn't mean a desire not to remain in the Anglican Communion, just a desire to stop being part of the Covenant's processes. As an aside, this raises the question as to why possible rejection of the Covenant is depicted as carrying the meaning I have outlined above: that a Church isn't committed to the Anglican Communion. But that's another issue.

What strikes me as very strange in section 4.3 is the suggestion that withdrawing from the Covenant “may raise a question relating to the meaning of the Covenant” and even “of compatibility with the principles incorporated within it.” I don't see how this follows. The Covenant allows a Church to withdraw. If a Church avails itself of that provision, the meaning is pretty clear. What question could there be about the meaning of the Covenant? Oh, I suppose that the withdrawing Church could state as its reasons the sorts of things that I have been arguing should have prevented it from adopting the Covenant in the first place: it lacks clarity of definition, is overly ambiguous, and the process for settling disputes is unclear, arbitrary and intrinsically unfair. I suppose that the remaining covenanting Churches might decide to take a look at the document and start working on some improvements, such as introducing respect for Natural Justice for starters. But that sort of question about the meaning of the Covenant exists already. It would be sad if it were to require a Church to pull out of the Covenant for the Standing Committee finally to notice the document's myriad deficiencies.

And as to compatibility with the Covenant, the action of withdrawing is provided for and thus compatible.

But even more troubling is the final phrase in section 4.3, that withdrawing from the Covenant could “trigger the provisions set out in section 4.2....” Beyond some deep soul searching by the Standing Committee and the remaining covenanting Churches, it's hard to imagine anything in section 4.2 that would be remotely appropriate as a response to the withdrawal of a Church. Given the familiar lack of clarity in the proposed Covenant, we are left to speculate as to what might be implied here, and frankly the only possibility seems to be the imposition of some “relational consequences” on a Church that withdraws. There are two problems with that prospect. First, the provisions in section 4.2 apply only to covenanting Churches. (See section 4.2.3) How could it be otherwise? And once a Church withdraws from the Covenant, it would cease to be a covenanting Church, to state the obvious. The second problem is worse: applying relational consequences to a Church that avails itself of the provisions to withdraw from the Covenant would be petty and vindictive, and threatening to do so to prevent Churches from withdrawing would be blackmail. Who would want to be party to a process that is not only arbitrary and unfair, but also petty and vindictive?

Withdraw from the Covenant? Better not to adopt it in the first place.

05 August 2011

Critical Mass

Five years ago, I suggested that the proposed Anglican Covenant might be understood as a new species of Canon Law, analogous to an international treaty. The analogy is straightforward: a treaty is a binding and enforceable agreement among sovereign states who incorporate the undertakings in the treaty into their domestic law; the proposed Covenant is intended as a binding and enforceable agreement among autonomous Churches who would presumably incorporate the undertakings in the Covenant into their domestic Canon Law. If we thus understand the proposed Covenant as a kind of International Canon Law, I suggested, it would be useful to include an expert in international treaty law in the drafting team, to provide a perspective on how to draft such a document.

I know nothing of international law or international treaties beyond what one might read in a newspaper. My area of interest is Canon Law. But usually when I read of a new treaty, it specifies a certain number of signatories required before the treaty comes into force. Consider, for example, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction. Article 17 of that Convention requires 40 states to sign on before it comes into force. Or the Montreal Protocol onSubstances that Deplete the Ozone Layer, which had a more complex formula, requiring a minimum of 11 signatories representing two thirds of the estimated 1986 global consumption of the banned substances, and also specified a date before which the Protocol would not come into force.

I assume that this sort of provision is the norm in a multilateral treaty. The reason is not hard to imagine. A multilateral treaty without a critical mass of signatories isn't of much use, and there's really no point in holding preliminary signatories responsible for maintaining the provisions of a treaty without that critical mass. What constitutes a critical mass depends, of course, on the subject matter of the treaty.

According to section 4.1.6 of the proposed Anglican Covenant, “This Covenant becomes active for a Church when that Church adopts the Covenant through the procedures of its own Constitution and Canons.” There is no specification of a critical mass of signatories required to make the proposed Covenant meaningful. So, evidently now that there are four signatories the Covenant is already in force, for those four at any rate. Already those four Churches are responsible for the undertakings in the Covenant (whatever those might be, given that they are not defined) and are free to make use of the procedures in section 4.2 to “raise questions” either about the meaning of the Covenant or about each others' actions. But would that really be meaningful in the life of the Anglican Communion? Surely, it makes little sense to engage the dispute-settling mechanism before a critical mass of Churches have signed on to the Covenant. Perhaps if Mexico decided tomorrow to raise a question about something the Caribbean was up to – which it could, on the face of it, both Churches having already adopted the Covenant – the Standing Committee might well ask them to wait until a few more Churches have agreed to the Covenant. But how many would that be? Since the Covenant doesn't say, it would be an arbitrary decision of the Standing Committee. (Of course, given the appalling lack of definitions in the proposed Covenant, virtually all decisions of the Standing Committee will be arbitrary.)

Similarly, any of the four Churches could now propose an amendment to the Covenant text, ratification of which by three of them would bring the amendment into force. Again, presumably the Standing Committee would ask them to wait for a critical mass. Under section 4.4.2 the Standing Committee is required to submit any proposed amendment to the Anglican Consultative Council, the Primates' Meeting, and the Covenanting Churches, and then to formulate a recommendation with respect to its adoption. In submitting the amendment to the Covenanting Churches, the Standing Committee could recommend that it is premature to amend the Covenant, but there's no provision in the Covenant allowing the Standing Committee actually to stop a proposed amendment.

For the Canadian Church, in my view, adoption of the Covenant wouldn't really be meaningful unless the Church of England has adopted it already. And it would be awkward for us if the Covenant were to come into force before all the Churches of the Anglican Communion adopt it. This is because of the statement in the Solemn Declaration – the cornerstone of the Constitutional Framework of the Anglican Church of Canada – that we “declare this Church to be, and desire that it shall continue, in full communion with the Church of England throughout the world....” Surely, notwithstanding the Archbishop of Canterbury's comments about a two-track Communion, adoption or otherwise of the Covenant has implications for the nature of our relations with the other Churches of the Anglican Communion.

Is there a critical mass of Churches required before adoption of the Covenant becomes meaningful, and which ought to be required before it comes into force? Should that critical mass of necessity include the Church of England? Should it count not just Churches but also a percentage of the Anglicans in the world? And if there is such a critical mass, why is it not specified in the proposed Covenant itself?

In the absence of such a definition, perhaps it would be useful for each Church proposing to adopt the Covenant to specify a critical mass in the legislation by which it adopts the Covenant. I have in mind a clause such as “the adoption of the Covenant shall become effective for this Church at such time as three quarters of member Churches in the Anglican Communion, representing not less than two thirds of Anglicans, and including the Church of England, shall have adopted the Covenant.” That sort of bypasses section 4.1.6, or at least qualifies it, but at least it would make it clear what the Church in question thought would be a critical mass of signatories before the proposed Covenant is meaningful.

04 August 2011

A Tale of Two Covenants

It was the best of Covenants, it was the worst of Covenants.

The proposed Anglican Covenant, we are told by those who support it, is a straightforward statement of what Anglicans believe, along with a straightforward commitment both to be cautious in introducing new ideas or practices, and to participating in mediation when a question arises about the propriety of a Church's new development. Nothing much new, certainly nothing scary.

No, say the proposed Covenant's opponents. For them the document is neither a straightforward statement of Anglican belief nor a straightforward commitment to adhere to that belief. For opponents, the proposed Covenant is vague, and includes a dispute-settling mechanism that is arbitrary, without clear definitions or procedures, and which violates the standards of natural justice. Very scary.

These two views of the proposed Covenant are obviously quite incompatible. It is as though there were not one proposed Covenant, but two. The Covenant that the supporters are supporting is not the Covenant that the opponents are opposing. And both sides seem to shake their heads and say, “if only the other side understood the Covenant properly, they would agree with us.”

As an opponent of the Covenant, it should go without saying which Covenant it is that I oppose. In fact, if I truly believed that the proposal before us were more or less the Covenant depicted by its supporters, I am not certain I could muster either much enthusiasm for it nor much energy to oppose it. But my careful study of the proposed Covenant text convinces me that it is not as depicted by its supporters.

I wonder how many Covenant supporters would support the Covenant that I oppose?

I suppose a fundamental question confronts those who will be responsible for voting on whether to adopt or reject the proposed Covenant, which is to say, members of the various General Synods in the Anglican Communion. The question is, which Covenant is really the one on offer? Is it the Covenant that the supporters support, or the Covenant that the opponents oppose? Much will turn on that question.

12 July 2011

Provincial Autonomy

One of the features of the proposed Anglican Covenant is that it purports to protect and respect the autonomy of the Churches of the Anglican Communion. Elsewhere I have suggested that this is not, and cannot, be true. But what is this autonomy, often referred to as “Provincial Autonomy”, and why is it important?

Provincial autonomy was the key element and starting point of the English Reformation. The principle is found in three significant documents from the sixteenth century. First, and preeminently, is the Act of Supremacy 1534, which was repealed under Queen Mary and restored under Queen Elizabeth in 1558. There were a number of reasons for this assertion of supremacy, most of which have little to do with the Christian faith, to be honest, but by putting the Church firmly under the control of the King, the Act did allow for subsequent developments in the Church of England.

The Act of Supremacy is echoed in the 39 Articles. Article 37, Of the Civil Magistrates, states
The King's Majesty hath the chief power in this Realm of England, and other his Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction.
And, just to make the implications of this crystal clear, the Article goes on to say:
The Bishop of Rome hath no jurisdiction in this Realm of England.
Also in the 39 Articles, Article 34, Of the Traditions of the Church, explains
It is not necessary that Traditions and Ceremonies be in all places one and utterly like; for at all times they have been divers, and may be changed according to the diversities of countries, times and men's manners, so that nothing be ordained against God's Word.

Every particular or national Church hath authority to ordain, change, and abolish, ceremonies or rites of the Church ordained only by man's authority, so that all things be done to edifying.
Finally, the project of reforming public worship in England is explained as follows
And in these our doings we condemn no other Nations, nor prescribe any thing but to our own people only: For we think it convenient that every Country should use such Ceremonies as they shall think best to the setting forth of God's honour and glory....
Of Ceremonies: Why Some be Abolished and Some Retained (1549)
So for the English reformers autonomy meant freedom to make some changes in public worship, and in the norms by which the Church lived in England, such as allowing clergy to marry. For Henry it meant the freedom to dissolve the monasteries and make off with the lands. But respect for others' autonomy was part of the claim of autonomy, as we see in the explanation of the liturgical reforms – we do these things in our own country, without foisting them on anyone else, respecting other countries' authority to do what seems best to them in their own context.

The defence of autonomy, especially by North American anti-Covenant commentators like me, is sometimes depicted by proponents of the Covenant as an attempt to evade accountability. But autonomy is about more than just telling the Pope “you're not the boss of me.” Or about saying the same to the Anglican Communion. Having autonomy means being capable of making free and uncoerced decisions and, particularly in the context of Churches, having the right of self-government. It's about taking responsibility for establishing mechanisms of government and discipline for the responsible development and exercise of faith in each Church's context. Those mechanisms are not infallible, of course, but in each context they are the processes by which Anglicans seek to define and live out their faith in a contextually appropriate manner, all the while respecting the responsible efforts of Anglicans in other contexts to make their own decisions about how best to live out their faith and mission in their own contexts.

The notion of the Covenant as a mechanism of accountability circumvents the accountability mechanisms already in place in each autonomous Church. It is the application of coercion, which removes autonomy and refuses to allow the Churches to function in a responsible, adult manner. Provincial Autonomy is fundamentally about taking and exercising responsibility, and about giving other Churches the benefit of the doubt with respect to their responsible exercise of their faith in their contexts. It is fundamental to being Anglican. And it is undermined by the proposed Covenant.

04 July 2011

Blame Canada?

The Revd Canon Dr Alyson Barnett-Cowan, Director for Unity, Faith and Order for the Anglican Communion, has written a defence of the proposed Anglican Covenant. If I am reading her correctly, she is suggesting that this document is just a natural development in a series of events that began nearly a century and a half ago at the instigation of the Canadian Church.

Canon Barnett-Cowan rehearses the history of the origins of the Lambeth Conference: Bishop Colenso of Natal had some controversial ideas that upset some bishops in Canada. The Canadian bishops suggested to the Archbishop of Canterbury that he had to do something and the Lambeth Conference was born. Actually, Canon Barnett-Cowan has left out a few salient points. First, Colenso's ideas upset more than just the Canadians. He also upset the other bishops in South Africa. And his metropolitan, Bishop Gray of Cape Town, deposed him for heresy. In fact, Colenso's ideas were generally panned around the world, except by serious biblical scholars, and a cottage industry sprang up producing books against Colenso.

Nor did the Canadian bishops act on their own. They took a motion to the Synod of the Province of Canada, which was endorsed by the clergy and laity of that Synod, requesting that the Archbishop of Canterbury convene a “national” meeting of all bishops to discuss the situation. Although the initial idea was to invite only bishops from the British Empire, thus excluding the Episcopal Church, eventually all Anglican and Episcopal bishops (except Colenso) were invited. But this invitation was not without controversy itself. Despite assurances that the meeting would claim no authority over the Churches, the Archbishop of York, among others, refused to attend for fear that the Conference would develop into a Synod with legislative powers, and centralized authority was undesirable.

So in fact, it is a bit odd to say that setting up a centralized authority with coercive powers by way of a Covenant (legislation) is in continuity with setting up a deliberative (not legislative) body with no claim to any power whatsoever, coercive or otherwise.

Canon Barnett-Cowan suggests that “the idea of having a comprehensive, coherent, agreed-upon understanding of how the Anglican family works has been around for a long time.” And it might be a good idea. But the proposed Covenant is not such a document. It is neither comprehensive nor coherent. Rather it is ambiguous, and so vague that it is impossible to understand what it commits Churches to. And although it makes passing reference to the Instruments of Communion, it does nothing to describe “how the Anglican family works.” It does contain a vague and fundamentally unjust process for resolving disputes, but that's a different matter.

Canon Barnett-Cowan suggests, correctly I think, that the Virginia Report, presented to the Lambeth Conference of 1998, did not get the attention it deserved. The bishops seemed much more interested in discussing sex than governance. The result, says Canon Barnett-Cowan, was that “when, in the first years of the new millennium, three things happened that triggered a crisis of Anglican coherence, there was not an agreed-upon mechanism to consult and decide on what to do.” Actually, I'm not sure that's completely accurate. In fact there were already three Instruments of Communion (still then called Instruments of Unity) that could deal with the events of the turn of the millennium. It is true that none of them had coercive power, which some of the protagonists wished for, but that was by design. Centralized coercive power had never been felt desirable in the Anglican Communion.

Ah, says Canon Barnett-Cowan, but if only the Virginia Report had been given due attention, “there might have been better mechanisms in place for all to come to the table to discern the way ahead.” Better than the proposed Covenant, she means. So, in fact, the Anglican Communion Office is aware of better mechanisms than the Covenant. So why aren't we pursuing them rather than pushing the Covenant? And for that matter, why not use the mechanisms that were already in place? Simple: some people wanted coercive authority and none was on offer.

And so we have the proposed Covenant before us. But, some people are suggesting that it's punitive, so Canon Barnett-Cowan wants to correct that misconception. “It is not about punishment; it is about mutual responsibility and interdependence in the Body of Christ.” As I've written previously, it may not be about retribution, but it's certainly about coercive power, which is one definition of punishment. Just ask Bishop Colenso.

And what of Bishop Colenso? What were his dangerous and radical ideas? He was condemned for two basic ideas: that the Old Testament should not always be read as literal history; and that the Church needed to account for the local context when entering a polygamous culture. He added a third issue: that Bishop Gray should not be able to wield coercive power over him.

Colenso was vindicated on all counts. On the question of a literal reading of the Old Testament has has been vindicated by history and by scholarship. His basic idea is quite unremarkable in any seminary. On the question of polygamy, he was vindicated by the same Lambeth Conference that was set up to deal with him in the first place, which resolved in 1988 that there should be a limited acceptance of polygamy by the Church where culturally appropriate. And on the question of coercive jurisdiction he was vindicated by the Judicial Committee of the Privy Council, which ruled that Bishop Gray had no coercive jurisdiction over Colenso.

What will history say about the proposed Covenant in a hundred years?

28 June 2011

Ten Questions

As noted earlier, the Governance Working Group of the Anglican Church of Canada has issued a report outlining the legal and canonical implications of the adoption of the proposed Anglican Covenant. The report invites responses to ten questions. Here are the questions along with my responses.

1. Should the imprecision in the definitions of a number of terms used in the Covenant concern General Synod when it considers whether or not to adopt the Covenant?

Imprecision or elasticity of meaning can be a strength in documents such as theological consensus statements and liturgical texts. In these sorts of texts elasticity allows for agreement on wording by a broad cross section of people because of, not in spite of, the imprecision. We can agree to use the same words without having to mean precisely the same thing. But the Covenant is not a consensus document. It is a set of standards, a set of commitments and undertakings, and a process for measuring whether a given Church is fulfilling its commitments in light of those standards.

The GWG report correctly notes that imprecision in the standards makes it impossible for a Church to know precisely what commitments it is making in adopting the Covenant. When a question arises as to whether a given controversial action is compatible or incompatible with the Covenant, elasticity of meaning becomes a serious liability, because without clear criteria for determining compatibility, inevitably any decision rests heavily on the discretion of the decision-making body and risks being criticized as arbitrary. The imprecision in several definitions in the Covenant thus undermines the credibility of any decision that might in future be made pursuant to the Covenant, and introduces risk that protagonists in a dispute may refuse to accept such a decision. The likely outcome is increased conflict rather than conflict resolution.

2. Should the lack of natural justice and procedural fairness in section 4 concern General Synod when it considers whether or not to adopt the Covenant?

The principles of natural justice are fundamental to producing fair outcomes in any judicial or quasi-judicial process. These principles are essential to the administration of justice in both civil and canonical realms. They are rightly guaranteed in Canon XVIII on Discipline. It is essential to ensure that decisions are not only fair, but that they are demonstrably fair by design rather than by good fortune, and seen to be fair. Without guarantees of procedural fairness, the credibility of the dispute-settling process in section 4 is undermined, and there is a real risk that a decision could be reached which is demonstrably arbitrary and unfair. Because all human processes are fallible, the preservation of fairness must depend on the design of the process, and not on the good will of the members of the tribunal. Fairness is a Gospel value, and the Church should set an example to the world in establishing processes that are demonstrably fair. Implementing a process which is demonstrably unfair is contrary to the fourth Mark of Mission (“to seek to transform unjust structures of society.”) Given that this Mark of Mission is itself part of the Covenant (s. 2.2.2.d) the dispute-settling process in section 4.2 is arguably incompatible with the Covenant.

What is worrisome is that it is conceivable that the outcome of a disciplinary proceeding pursuant to Canon XVIII could be submitted to the Standing Committee for review. Thus a process that guarantees natural justice could be subject to review by a process that violates natural justice.

3. If the Covenant were adopted by General Synod, what wording should be included in the resolution by General Synod to ensure clarity about General Synod’s intention about whether the Covenant does or does not affect the doctrine of the Anglican Church of Canada?

The problem suggested by this question is the lack of clarity about the implications of adopting the Covenant, and specifically whether the Covenant affects the doctrine of the Anglican Church of Canada. Elsewhere I have argued that the Covenant's procedures could overrule a doctrinal statement made by the General Synod pursuant to its jurisdiction over the definition of the doctrines of the Anglican Church of Canada (Declaration of Principles s. 6(i)). If that is what is intended by the General Synod in adopting the Covenant, then it would amount to ceding jurisdiction, which point would have to be very clear prior to adoption. If it is not what is intended, the question is whether the General Synod in fact does intend to adopt the Covenant. Although it would be a trivial matter to include a clause in the adopting resolution to the effect that “adoption of the Anglican Covenant shall not be interpreted to affect the doctrine of the Anglican Church of Canada or the General Synod's jurisdiction over doctrine”, the question is whether such a clause would be consistent with adoption of the Covenant. Adding such a proviso to the adoption of the Covenant would amount either to a partial or conditional adoption or to a unilateral amendment of the Covenant, neither of which is contemplated by the Covenant.

4. If the Covenant were adopted by General Synod, what should be the relationship between the Covenant and the Declaration of Principles and the Constitution of the Anglican Church of Canada? What wording should be included in the resolution by General Synod to achieve this?

I believe that the Covenant, if adopted, would be constitutional or quasi-constitutional in effect. That being the case, the resolution to adopt the Covenant should make this clear, most straightforwardly by including reference to the Anglican Covenant in the Declaration of Principles. One way to accomplish this would be to insert a new clause 7(a) stating “the General Synod, and the Provincial and Diocesan Synods in the Anglican Church of Canada shall exercise their authority in their several jurisdictions in accordance with, and subject to the procedures of, the Anglican Covenant.” Section 9(a) would have to be amended as well, inserting “With the exception of section 7(a)” at the beginning. The effect of the first amendment would be to make all Synods in Canada explicitly subject to the terms of the Anglican Covenant. The second amendment would do the same with respect to bishops exercising the (undefined) powers inherent in the office of bishop.

Including the Covenant in the Declaration of Principles is, of course, contrary to the assurances that its adoption does not imply any constitutional change or limitation in autonomy. (Section 4.1.3)

5. What consultation with (or approval by) the Provincial and Diocesan Synods [is required] before General Synod considers a resolution to adopt the Covenant? Beyond any legal requirements, what consultation (or approval) should take place?

If the Covenant is to be included in the Declaration of Principles as suggested above, then it requires a two-thirds majority of each Order at two successive sessions of the General Synod as well as consent of all the Provincial Synods. (Declaration of Principles ss. 11(a)(ii-iii)). Beyond that, the dioceses should also be consulted, particularly in light of the limitations on the exercise of their authority implicit in the adoption of the Covenant. Although there is no mechanism for the dioceses to signify their assent, the Rules of Order do provide for a vote by dioceses (Rule 20). Ideally, every Diocesan Synod should be requested to debate the Covenant and to signify their intention to be bound by it. No Province should give its consent without the consent of the dioceses, even though this is not constitutionally required. Nevertheless, if adoption of the Covenant is tantamount to a constitutional change for the General Synod, the same is true for the Provinces and dioceses.

6. If General Synod were to adopt the Covenant, what steps would have to be taken to be able to fulfil the obligation under section 4.2.9 for there to be adequate mechanisms within the Canadian Church to ensure that all parts of the Canadian Church comply with the Covenant? What steps would need to be taken by General Synod, the Provincial Synods and the Diocesan Synods to put in place such a mechanism?

If the Covenant were included in the Declaration of Principles as suggested above, then any action contrary to the Covenant by any Synod would be ultra vires. What would be required would be some kind of constitutional mechanism to nullify any action by a Synod. One way to accomplish this would be to give authority of nullification to either the General Synod or the Council of General Synod with respect to Provincial and Diocesan Synods, and perhaps to the Supreme Court with respect to the General Synod, unless the declaration of incompatibility by the Standing Committee is understood itself to nullify any action in question.

The General Secretary could act as the Covenant Compliance and Liaison officer.

The difficulty in specifying mechanisms to ensure compliance is that it is impossible to know in advance exactly what actions might be incompatible with the Covenant and hence what would constitute compliance. Any compliance mechanism would have to be reactive, taking action only when the Standing Committee has declared an action by a Canadian synod to be incompatible with the Covenant.

But beyond synodical action, it is possible to contemplate that an action by a bishop might be declared incompatible with the Covenant, and thus also ultra vires. For example, a bishop's decision to ordain a candidate could be overturned by the Standing Committee in response to a question. Or even the election and consecration of a bishop could be nullified. The implications of such a ruling are obviously serious, especially if it were to occur well after the fact. There is nothing in the Covenant that prevents it from being used retroactively. In such a case it is difficult to imagine how compliance could be ensured. In fact, ensuring compliance could conceivably prove so onerous a task that the General Synod might seriously consider withdrawing from the Covenant.

7. Is the strong synodical place of the laity in the Canadian Church sufficiently upheld in the decision-making processes in the Covenant?

Since 1857 the clergy and laity of the Anglican Church of Canada have had authority to meet in Synod to determine the doctrine, discipline and policies of the Church. The same question could be asked with respect to the place of the lower clergy in Canadian synods. The chief decision-making authority in the Covenant process is centred on the Standing Committee, of which 50% is Primates and 50% representatives of the Anglican Consultative Council. The latter half would comprise bishops, clergy and laity, with no rules about the proportions of each. Where bishops are a small minority in Canadian Synods, and clergy and laity approximately equally represented, this proportion is not present in the Standing Committee. Thus the significant role played by both laity and lower clergy in Canadian synods is omitted in the mechanisms of the Covenant. Nor is there any youth representation in the Standing Committee. In practice, the preponderance of authority under the Covenant would be held by bishops and particularly by Primates.

8. Would there be a difference between General Synod’s passing a resolution to “adopt” the Covenant (the term used in the Covenant), “accede” to the Covenant (the term used by the Church in South-East Asia), or “subscribe” to the Covenant (the term used by the Church of Ireland)?

It is not clear what either the Church of Ireland or South-East Asia intended by choosing a verb other than “adopt” in relation to the Covenant. The Covenant does not contemplate any verb other than “adopt.” What is clear from the Church of Ireland's debate is that, whatever they intended by choosing “subscribe”, they understood the term to mean something different than “adopt”. Thus it would appear that the Church of Ireland explicitly chose not to adopt the Covenant. Although the precise difference would depend on the verb chosen, there would be a difference in not using the verb “adopt.”

In my view there is no value in the Anglican Church of Canada choosing to employ a verb not contemplated by the Covenant. Either the General Synod will intend to adopt the Covenant or it will not. In either case, the action taken by the General Synod should be unambiguous, and not subject to debate or interpretation.

9. What would be the effect of a decision by General Synod not to adopt the Covenant?

Under the Covenant, the only effect of a decision by the General Synod not to adopt it would be that the Anglican Church of Canada would not be bound by the Covenant and would be ineligible to participate in the dispute-settling procedures in section 4.2, or to propose amendments to the Covenant (section 4.4.2). Some commentators have suggested that failure to adopt the Covenant would be tantamount to withdrawing from the Anglican Communion. But the Covenant neither states this, nor defines membership in the Anglican Communion.

Whether there would be any other consequences to a decision not to adopt the Covenant is impossible to predict. Any further consequences would not be “relational consequences” within the meaning of the term in the Covenant.

10. Are there any other legal or constitutional implications or consequences which have not been identified by the GWG which would be raised by adopting the Covenant?

The GWG report is both thorough and comprehensive. That said there is one question that has not been touched on: if the General Synod of the Anglican Church of Canada were to adopt the Covenant, would the Standing Committee and the dispute-settling mechanism of section 4.2 supersede the authority of the Supreme Court of Appeal, described in Canon XX as “final”?

The GWG is to be commended for their excellent work.