This article argues that marriage is a divine institution that pre-dates the state, and marriages are supernaturally effected by God consequent on the exchange of marital consent by the parties, whether or not the state recognises them as marriages. In fact, taking note of, and legislating about, marriage thus properly conceived is not within the state's remit. Despite this, the law in England and Wales is involved with the institution of marriage in three main ways: (1) it purports to define marriage, and its entry and exit conditions; (2) it passes laws affording or denying certain legal benefits or penalties on the basis of marital status; and (3) it registers marriages, and in practice imposes or denies the benefits or penalties just mentioned on the basis of registration of marriage, or lack of it. The supernatural action on God's part of creating marriages is not a fit subject for such involvement on the state's part. The underlying exchange of marital consent by the parties is, by contrast, within the state's sphere of competence, but it is argued that the state should be tracking a broader category of relationships than just those involving the exchange of marital consent. It is suggested that all marriage law should be repealed, and replaced by an Australian-style law of de facto relationships. If the law deals with de facto relationships there is no need for it to be involved with the institution of marriage as well, and that institution can be left to flourish outside the state's grasp. The article goes on to respond to some possible objections.

Roman canon law did not cease to have an effect within the Church of England after the Reformation. English ecclesiastical lawyers continued to use pre-Reformation foreign papal law and domestic provincial and legatine law. These lawyers used several ideas to explain its status in pre-Reformation England. They usually held that it continued in force after the Reformation on the basis of section 7 of the Submission of the Clergy Act 1533 (if not repugnant to laws of the realm) – and a commission would reform it. However, it is submitted here that this statute enabled the continuance of only domestic provincial law and perhaps legatine law but not foreign papal law. Yet a 1543 statute continued the provincial law and ‘other ecclesiastical laws’ used in England, which may or may not have included legatine and papal law. Another of 1549 has no continuance provision, but the commission was to review ‘ecclesiastical laws used here’ – which, too, may or may not include legatine and papal law. A statute of 1553 repealed these earlier statutes. A statute of 1558 repealed that of 1553 but revived only the 1533 statute, not those of 1543 or 1549. This suggests that only domestic provincial law, and perhaps legatine law, continued on the basis of statute, and not foreign papal laws. The latter might have applied from 1543 to 1553 but not after 1558, as only the 1533 statute perpetuating solely domestic law was revived. Nevertheless, English lawyers continued to invoke foreign Roman canon law. By the nineteenth century they did so on basis of custom not statute – and the 1533 Act section 7 was repealed in 1969.

This article is based on an Ecclesiastical Law Society London Lecture delivered on 17 November 2021. It builds on a previous lecture entitled ‘Safeguarding in church and state over the last 50 years: “from Ball and Banks to Beech via Bell”’, which also formed the basis of an article published in this Journal in 2020. That article, among other things, identified a number of significant cases of sexual abuse by clergy which were/are the subject of ‘lessons learned’ reviews and concluded by suggesting how investigation and fact-finding might take place in the future, independent of the bishops, but under the supervision of a ‘judge’, and argued that effective risk assessments could only be based on findings of fact. The author was subsequently asked to chair a working party for the Ecclesiastical Law Society aimed at addressing how the Clergy Disciplinary Measure 2003 (‘CDM’) should be reformed. This article now deals with events that have occurred since, from the publication of the Independent Inquiry into Child Sex Abuse (IICSA)'s investigative reports into the Anglican Church (inter alia), the Lambeth group's proposals for reform of the CDM, through to General Synod's responses to both sets of recommendations. It also surveys in some detail the approach the church has taken to the assessment of risk within its safeguarding policy in recent years, as well as its historical approach to clergy discipline. The article concludes by drawing some threads together as a result of the author's own work and research into these two subjects over the past two years, and finishes by suggesting some possible directions in which the church ought now to move.

The Provinciale (1430) is among the most significant and long-lived works of English ecclesiastical law. It edited and commented upon the legislation of the Province of Canterbury. This article explores the work's initial dissemination and early readership. It is based on an examination of the surviving manuscripts. The first owners of these manuscripts were almost all secular and religious clergy. Differences in content between the copies show how Lyndwood's work was modified. In particular, his edition became detached from his commentary. The manuscripts also reveal readers’ responses to the work. Marginal annotations indicate the individual, collective and academic ways in which early users engaged. Manuscripts were kept up to date through the addition of new laws, but not consistently or for very long. They continued to be consulted alongside the first printed editions of the work. Study of these manuscripts establishes the wide reception and influence of the Provinciale in pre-Reformation England.

Despite the widespread use of cremation, there is once again a shortage of burial space in some parts of the country. Chancellors dealing with petitions for faculties reserving grave spaces are finding that more and more parochial church councils are opposing reservation as they see that the available space is running out. In rural areas it may be possible to persuade a farmer or landowner to part with some land to form a new burial ground, perhaps serving a number of adjacent parishes. Section 35 of the Church Property Measure 2018 sets out the law relating to shared burial grounds, developed in a series of nineteenth-century Acts which a modern reader would find both prolix and overcomplicated. This article explores the history and practical workings of the law, illustrating these by reference to a prime example of a shared burial ground, the Mill Road Cemetery (more formally the Parochial Burial Grounds) in Cambridge.1 The law as to rights in graves and the memorials placed on them causes much misunderstanding. Our account will show that the same may be true with regard to the burial ground as a whole.

All Christians are called to pray. The daily offering of Morning and Evening Prayer is a particular obligation of the clergy of the Church of England, as part of the ‘manner of life of clerks’ laid down in Canon C 26. However, despite the significant time devoted to these prayers by the clergy on a daily basis, there has been little detailed examination of this canonical obligation. This article explores the historical background to the obligation and its effect today.

Charities increasingly make up the body politic of the Church of England. They include parochial church councils, diocesan boards of finance and national institutions. By April 2024 every chapter of a cathedral will be required to register as a charity. Faithful parishioners put their collection money in gummed envelopes which call for them to add Gift Aid to their donations. Individual churches run foodbanks, drop-in centres, baby and toddler groups, and a whole range of charitable activities. The general public could be forgiven for thinking that ‘the Church of England’ is a national charity. However, it has not always been the case that the work and mission of the Church of England has been through charities, and for much of its history the Church has remained largely independent of charity law. What are the consequences of increasing reliance on charities and where do the boundaries lie between ecclesiastical and canon law on the one hand and charity law on the other?

John Witte Jr is a law and religion scholar of the first order. For decades, as the director of the Emory Center for the Study of Law and Religion at Atlanta, he has played a leading part in the development of the field of law and religion globally. He has written prolifically across a wide range of law and religion subjects. He has nurtured and guided a generation of vibrant scholars who will shape the field for decades to come. He has brought important new insights to law and religion that have animated critical and original law and religion thinking. This article introduces aspects of his work. It examines the personal interest of Witte in law and religion, and the influences on his approach to the field, particularly his Christian upbringing and convictions. It explores his rich and robust understanding of law and religion, around notions of the dialectical interaction between the two, the religiosity of secular law, and the juridical character of religion. It also studies Witte as a historian of law and religion – his quest to retrieve, reconstruct and re-engage historical aspects of law and religion so as to address challenges of today, interdisciplinary, international and inter-religious. In all this, Witte provides a work ethic for Christian scholars in this field in terms of stewardship, accessibility and engagement.

The following words were spoken in the House of Commons 23 years ago:

Welsh jurist and Anglican theologian Norman Doe has pioneered the modern study of comparative ‘Christian law’, analysing the wide variety of internal religious legal systems governing Catholic, Orthodox and Protestant churches worldwide. For Doe, religious law is the backbone of Christian ecclesiology and ecumenism. Despite the deep theological differences that have long divided Christian churches and denominations, he argues, every church – whether an individual congregation or a global denomination – uses law to balance its spiritual and structural dimensions and to keep it straight and strong, especially in times of crisis. This makes church law a fundamental but under-utilised instrument of Christian identity and denominationalism, but also unity and collaboration on many matters of public and private spiritual life, both clerical and lay. Doe has developed this thesis in a series of impressive scholarly projects and books – first on Anglican law, then comparative Anglican-Catholic canon law, then all Christian laws and other Abrahamic laws, and their interaction with secular legal systems. This article offers an appreciative analysis of the development of Professor Doe's scholarship, and situates his work within the broader global field of law and religion studies.

This article examines the legal treatment of religious dissent from a comparative perspective, by focusing on the legal evolution from intolerance to toleration, and from toleration to emancipation in France, Italy, Norway and the United Kingdom. Historically, in Europe, only people professing the official religion were regarded as full members of the political community. Those who professed another religion were expelled, persecuted, discriminated or – in the best cases – merely tolerated. Over the course of the nineteenth and twentieth centuries, in different degrees and forms according to the country concerned, European states started separating citizenship from religious belonging – a fundamental step in the process of secularisation of law in Europe. This development led to the emancipation of religious dissenters through the recognition of both the principle of equality of all citizens before the law, regardless of one's religion or belief, and the individual right to freedom of religion and belief.

Her Majesty's Royal Palace and Fortress the Tower of London, less formally known as the Tower of London or simply ‘the Tower’, was the seat of royal power in England for several centuries following its construction by William the Conqueror in 1078. While now a popular tourist attraction, it remains the home of the Crown Jewels, is a working barracks and maintains many ceremonial traditions of state. Two chapels are located within its walls. Foremost of these is the late eleventh-century chapel of St John the Evangelist (St John's), located within the White Tower, noted as a rare surviving example of early Anglo-Norman ecclesiastic architecture. To the north-west, the Chapel of St Peter ad Vincula (St Peter's) has an equally remarkable history and is a building of singular importance even within the Tower complex. Its origins may be traced, like many London parish churches, to a small, private house-church in the ninth century, before being subsumed within the boundaries of the fortress. The chapel, the latest of three documented iterations, was constructed between 1519 and 1520 and is the burial place of many notable figures, including the sixteenth-century queens Anne Boleyn, Catherine Howard and Lady Jane Grey, together with Cardinal John Fisher and the former Lord Chancellor Sir Thomas More, both now venerated as martyrs and saints in the Roman Catholic Church.

The issue of intra-church property disputes is one that is simultaneously quite old in American history and perhaps of greater relevance now than ever before. Given ever-increasing dissension within Christian church bodies over issues including homosexuality, women's ordination and racial justice, there are currently numerous church property disputes outstanding in the courts, and there are likely to be many more in the near future. From 1871 until 1979, the Supreme Court of the United States consistently took a deferential approach in property cases that involved church bodies with their own authorities and tribunals. When a dispute arose over church doctrine, polity or discipline and a hierarchical church reached its own decisions regarding proper ownership of the church's property, the Supreme Court determined that civil courts should defer to that church's internal decision-making process. The court first created this doctrine as a matter of ‘federal common law’ but in 1952 anchored it in the First Amendment's Free Exercise and Establishment clauses, applied to the states through the Fourteenth Amendment. During the mid-twentieth century, the Supreme Court consistently extended the deference standard against any state-level attempts to restrict or circumvent it. However, in the 1979 case of Jones v Wolf the court changed its standard significantly and adopted a ‘neutral principles’ approach, which weighs a church's internal documents and deliberations against property deeds, state property and trust statutes, and other sources, in an attempt to allow secular courts to rule on such cases while avoiding potential First Amendment concerns.

In November 2020, the Appellate Tribunal (the Tribunal) of the Anglican Church of Australia (ACA) provided its opinion on references as to the constitutionality of diocesan legislation relating to same-sex blessings and marriage. There were two concurrent references about a marriage blessing service intended for use in the Diocese of Wangaratta (the Wangaratta references). There were also two concurrent references about the Clergy Discipline Ordinance 2019 Amending Ordinance 2019 of the Diocese of Newcastle (the Newcastle references).

When asked by an expert in the law, ‘And who is my neighbour?’, Jesus answered with the parable of the good Samaritan (Luke 10:25–37). This was a radically inclusive answer: your neighbour could be anyone. By contrast, a priest who asks an ecclesiastical lawyer ‘and who is my parishioner?’ may be given a far less clear or satisfying answer.

In December 2021, the Episcopal Standards Board of the Anglican Church of Australia (the Board) was satisfied that Bishop Roger Herft, the former Bishop of Newcastle between 1993 and 2005, was unfit to remain in holy orders and determined that he be deposed from the exercise of holy orders (the Board Determination). This decision is significant because it is the first occasion in the Anglican Communion on which a senior church leader has had the most severe sanction of deposition from the exercise of holy orders imposed for their inaction in response to allegations of abuse. The context for this decision has been one of allegations of abuse made against church leaders and the concealment of these allegations by senior church leaders in contravention of the statutory requirement to report the allegations to government authorities. There has also been the public scrutiny through government inquiries of the response of churches and their leaders to child abuse.

Freedom of Religion or Belief (or FoRB), the abuse or loss of which leads to persecution, is both an ancient scourge, and also a profoundly serious modern crisis. It is right that we concern ourselves with the egregious persecution so many of our Christian brothers and sisters the world over experience: and out of love for our neighbour, and respect for the common good, we must extend that concern to all who, in this world today, are discriminated against, marginalised, beaten, threatened, tortured and killed simply because they believe something different from the majority around them. To espouse such a cause is profoundly appropriate for any Christian seeking to engage with integrity in public life today.