It is now generally recognised that as a matter of history the canon law was applied, subject to variations by local custom, in pre-Reformation England just as much as throughout the rest of Western Christendom. Indeed such local variations were permitted by the canon law itself. As Professor Brooke concluded in The English Church and The Papacy From The Conquest To The Reign of King John:

“The English Church recognised the same law as the rest of the Church; it possessed and used the same collections of Church law that were employed in the rest of the Church. There is no shred of evidence to show that the English Church in the eleventh and twelfth centuries was governed by laws selected by itself.”

The same was also true until the Reformation.

In 1977 the House of Lords in R v Lemon unanimously asserted that the offence of blasphemy had survived a long period of desuetude, and remained very much alive and capable of being used. This surprised many. There had been no prosecution for the offence for sixty-five years. Lord Goddard had once declared it ‘obsolescent’, Lord Denning had described it as a ‘dead letter’, and in 1959 the Society for the Abolition of the Blasphemy Laws had abolished itself. Despite this, and despite disagreement among their Lordships as to the intention or mens rea of the offence, they had no doubt that it still existed as a criminal offence. Indeed, Lord Scarman expressly disassociated himself from the view that the offence ‘serves no useful purpose in modern law’.

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.

‘It is not at all easy (humanly speaking) to wind up an Englishman to a dogmatic level’.

This quotation is, of course, from Newman's Apologia, where many memorable things are said. Yet, even in England, it seems inescapable to treat of faith and doctrine if we are to consider Roman Catholic canon law. As Christian believers, consequently holding certain doctrines about Christ and his Church, we have a theology of canon law and a theology in canon law. We explore the theology of canon law whenever we consider why there is canon law at all in a Church founded on the unique saving grace of Jesus Christ, and we explore the theology in canon law whenever we consider how faith and doctrine show themselves in the making and application of canon law.

I was once sitting knee-to-knee with a woolsack full of judges at the State Opening of Parliament, and I asked them how far they were concerned with ethical issues in their work. They said “not at all”; such issues were the task of jurisprudence, not of legal practitioners. But I believe that ethics are bound up with the actual practice of the law and I want to point to three ways in which they interact.

I hope that I shall have the sympathy of the Society in attempting to respond to a request to speak about the legal implications of a body which had no standing in canon, ecclesiastical, civil or common law. The Lambeth Conference was a gathering of persons individually invited by the Archbishop of Canterbury to meet him for three weeks in the University of Kent at Canterbury. Finance for the meeting came from a number of corporate bodies but none of them had any control over what happened. The Archbishop had asked a number of persons to assist him in the organisation of the meeting but the ultimate control of it was in his hands, subject to the willingness of those who were there to fall in with what was proposed. During the last week of the meeting some seventy resolutions were passed, but none of them, with one possible exception, has any legal effect of any kind.

One of the main areas of concern highlighted in the Faculty Jurisdiction Commission Report (C.I.O. 1984) was the need for clear public accountability by the Church for changes and alterations to its buildings. Whereas parish churches are covered by the faculty jurisdiction, no comparable mandatory system exists for cathedrals. In order to remedy that the FJC proposed changes. Chapter 8 recommended that the Cathedrals Advisory Commission should be placed on a statutory basis and that proposals by cathedral chapters should be referred to the CAC where they involved “any significant work or works to preserve, alter or add to the building or its contents which would materially affect the architectural, artistic, historical or archaeological character of the Cathedral.”

In the coming months, the General Synod and then the diocesan synods will be considering legislation enabling bishops of the Church of England to ordain women to the office of priest, and making related provisions as to the manner and effect of this change in the law and practice of the Church of England. The purpose of this article is not to examine that draft legislation, which at the time of writing is still being subjected to line-by-line scrutiny in a Revision Committee of the General Synod, but to sketch in some of the legal background against which it was prepared. In particular, there is a fundamental issue: why is legislation needed? To which may be added: why is Parliamentary authority, expressed by the approval of a Measure, required for any necessary change in the Canons?