The Ecclesiastical Common Law: A Quarter-century Retrospective

2011 ◽  
Vol 14 (1) ◽  
pp. 20-42
Author(s):  
Charles George
Keyword(s):  
Decision Making ◽  
Church Of England ◽  
Common Law ◽  
Case Law ◽  
Freedom Of Religion ◽  
Court Decisions ◽  
Quarter Century ◽  
Ecclesiastical Law ◽  
The Church

This article reviews developments in ecclesiastical case law (interpreted widely) over the 25 years since the Ecclesiastical Law Journal was founded, focusing on four areas, in each of which, in the author's view, there have been significant developments: freedom of religion; the constitution of the Church of England; the protection of listed buildings; liturgy, ritual and doctrine. It notes the role of the Journal in reporting consistory court decisions and thus ensuring greater consistency of decision-making. It concludes by mentioning some of the leading cases in various other areas of ecclesiastical law.

Sovereignty and Common Law Judicial Office in Taylor's Case (1675)

2019 ◽  
Vol 37 (2) ◽  
pp. 397-429 ◽  
Author(s):  
David Kearns
Keyword(s):  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Chief Justice ◽  
Spiritual Nature ◽  
The Common ◽  
English Law ◽  
The Law ◽  
The Church ◽  
Law Making

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.

The Canon Law of the Church of England: Its Implications for Unity

1988 ◽  
Vol 1 (3) ◽  
pp. 18-23
Author(s):  
Quentin Edwards
Keyword(s):  
Canon Law ◽  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Legal Foundations ◽  
The Church

Among lawyers who profess to know their way about the labyrinth of the Church of England's legal foundations there is a debate whether there are two subjects or one – are ecclesiastical law and canon law the same? As some purists contend that canon law is more restricted in its scope I shall take, for convenience and perhaps accuracy, the description ecclesiastical law, which certainly comprehends, or should comprehend, canon law. The ecclesiastical law of the Church of England is derived from six sources (1) papal and domestic canon law, (2) ecclesiastical common law, (3) the relevant parts of the Corpus Juris Civilis, (4) parliamentary statutes, (5) Measures of the Church Assembly and the General Synod, (6) the Canons.

The Nature and Sources of Ecclesiastical Law

2018 ◽  
Author(s):  
Mark Hill QC
Keyword(s):  
Historical Development ◽  
Church Of England ◽  
Case Law ◽  
Early Church ◽  
Soft Law ◽  
Ecclesiastical Law ◽  
The Reformation ◽  
The Law ◽  
The Church

This chapter examines the nature and sources of ecclesiastical law, or the law of the Church of England. It begins with a discussion of the purpose of the law of and for the Church of England, which is to regulate the functioning of the Church and its individual members by a combination of commands, prohibitions, and permissions. It then traces the historical development of ecclesiastical law, from the early Church through the Reformation and post-Reformation. It also considers the nature and effect of establishment of the Church as well as Acts of Parliament, measures, canons, and secondary legislation that have become sources of ecclesiastical law. Finally, it looks at other sources of ecclesiastical law including case law and precedent, quasi-legislation and soft law, jus divinum, custom, jus liturgicum and dispensation.

The Court of Arches: Jurisdiction to Jurisprudence – ‘Entirely Settled’?

2021 ◽  
Vol 23 (3) ◽  
pp. 322-341
Author(s):  
Norman Doe
Keyword(s):  
Church Of England ◽  
Common Law ◽  
The Other ◽  
Court System ◽  
Ecclesiastical Law ◽  
Court Of Appeal ◽  
The Church ◽  
As If

The Arches Court, the court of appeal of the Province of Canterbury in the Church of England, has existed for more than 700 years. Its evolution – driven by principle, politics and pragmatism – is a fascinating reflection of a key tribunal in the court system of the English Church, and the site of major historical and often contentious developments within the Church. Its appellate status has not changed; it still has jurisdiction over faculties and clergy discipline; its judge is still appointed by the archbishop; and its jurisprudence has contributed much to the development of English ecclesiastical law. However, over the centuries its jurisdiction has contracted; the courts to which appeals against its decisions lie have changed; its historical lawyers of civilian advocates and proctors have been replaced by common law barristers and solicitors; the title for its judge, Dean of Arches, has survived by accident; its procedure has been simplified; and its decisions have throughout its history been respected but today have the authority of binding precedents. The article takes the story up to 2018, when the Ecclesiastical Jurisdiction and Care of Churches Measure provided that a decision of the Arches and of the provincial Chancery Court of York is today to be followed as if it were a decision of the other court.

Ecclesiastical Law and the Law of God in Scripture

1998 ◽  
Vol 5 (22) ◽  
pp. 7-13 ◽  
Author(s):  
Anthony Bash
Keyword(s):  
Church Of England ◽  
Case Law ◽  
Substantive Content ◽  
Ecclesiastical Law ◽  
The Subject ◽  
The Law ◽  
The Church ◽  
Positivist Approach

The Ecclesiastical Law Society is rightly promoting afresh the study of ecclesiastical law. In the case of the Church of England, the sources of ecclesiastical law are three-fold: case-law, statutes (and Measures made thereunder) and the Canons of the Church of England. These are the formal sources for identifying and expounding (Anglican) ecclesiastical law. The sources qua sources may not be the subject of debate; the debate may only be as to the interpretation of the contents of the sources and whether the sources should be amended. This approach to determining the substantive content of ecclesiastical law reflects the positivist approach to law, such as Bentham, Austin and Hart have set out.

Head and Members

2017 ◽  
Author(s):  
Peter Marshall
Keyword(s):  
Canon Law ◽  
Church Of England ◽  
Common Law ◽  
The Body ◽  
Body Of Christ ◽  
The Church

This chapter examines the role of the bishops of Rome, or popes, as ‘vicars of St Peter’, and also as ‘vicars of Christ’. St Paul taught that the Church was the body of Christ. If the Church was a body, then clearly, as John Alcock, bishop of Ely, declared in 1497, ‘in every realm of Christianity, the head thereof is Christ’. The chapter first considers what ordinary English people thought about popes and the papacy before discussing the issue of royal taxation of the clergy and the appointment of clergy to English benefices. It then explores lines of demarcation between common law and canon law, along with the arrest, imprisonment and death of a merchant named Richard Hunne, who was accused of heresy. It also looks at the issue of reforming the Church of England and people.

Ecclesiastical Law

2018 ◽  
Author(s):  
Mark Hill QC
Keyword(s):  
Church Of England ◽  
Fourth Edition ◽  
Legislative Reform ◽  
Ecclesiastical Law ◽  
Reform Measure ◽  
Independent Reviewer ◽  
Substantive Law ◽  
The Church

This fourth edition has been revised and updated to take account of significant changes in the substantive law, specifically: the effects of the Ecclesiastical Jurisdiction and Care of Churches Measure 2017; the overhaul of the procedure in the Consistory Court in consequence of the Faculty Jurisdiction Rules 2015; substantial repeals in the Statute Law (Repeals) Measure 2017 and the new procedure under the Legislative Reform Measure 2017; the effect of the House of Bishops' Declaration on the Ministry of Bishops and Priests concerning provision for traditionalists; and the role of the Independent Reviewer under the Priests (Resolution of Disputes Procedure) Regulations 2014. The book offers commentary, analysis, and various materials. Materials include: the Canons of the Church of England, together with the Measures and Rules (updated to 2018) regulating the faculty jurisdiction and clergy discipline.

The Changing Legal Framework of Establishment

2004 ◽  
Vol 7 (34) ◽  
pp. 292-303 ◽  
Author(s):  
David McClean
Keyword(s):  
European Community ◽  
Church Of England ◽  
Case Law ◽  
Legal Framework ◽  
Legal Analysis ◽  
Church Of Scotland ◽  
Clear Cut ◽  
Legal Nature ◽  
The Church

This article looks closely at the legal nature of Establishment, both in England and North of the Border. The legal material shows that the two cases are very different. The Ace od Supermacy 1558 and related legislation enable the English church's porition to be presented so as to meke it one aspect of the State, and tetwntieth-century case-law has tended to confirm that understanding. The Scottish kirk enjoys statutory autonomy under the Church of Scotland Act 1921, and again case-law emphasises the reality of its exemption from some of the usual jurisdiction of the secular authorities and courts (though its scope may be becoming less clear-cut in the light of developments within the European Community). The author asks how, in the English context, the legal analysis relates to the reality of the English situation, as seen through the insights of other disciplines, to the role of the Church of England nationally and locally, and to the, sometimes confrontational, relationship between Synod and Parliament.

Famous English Canon Lawyers: VIII Edmund Gibson, D.D. († 1748) and David Wilkins, D.D. († 1745)

1995 ◽  
Vol 3 (17) ◽  
pp. 371-378
Author(s):  
J. H. Baker
Keyword(s):  
Church Of England ◽  
Ecclesiastical Law ◽  
History Of ◽  
The Church

Since our next pair were not lawyers at all. it may seem rather incongruous to include them in the company of ‘canon lawyers’. Yet it would be pedantic to exclude them from a survey of English canonistic literature for want of the requisite formalities, especially since their collections of legal sources have been so widely consulted by ecclesiastical lawyers down to the present. Both their endeavours were prompted, indirectly, by a fierce controversy over the constitution of the Church of England and the historic role of Convocation; but, unlike much of the polemical literature spawned by that debate, the works of Gibson and Wilkins each made a more enduring contribution to the history of English ecclesiastical law.

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