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The right to freedom of religion, enshrined in the European Convention on Human Rights has been frequently tested, both in UK courts and in the European Court of Human Rights, where successive decisions over a number of years led to the establishment of several well-known principles. However, in recent years religious extremism has brought into focus a tension between the right of freedom of religious expression and the well-being of individuals (not least children) and society. The Strasbourg court requires neutrality on the part of the state and its courts. However, unlike the European Court of Human Rights, the domestic courts have had to face situations where religious observance can be seen to be causing serious harm and where interference in religious freedom and family life has been shown to be justified.
A panel of experts has produced a Statement of Principles of Christian Law, drawn from an examination of their internal regulatory instruments. These principles are offered for further examination by comparative scholars of church law, as an expression of shared ecclesiology, and in furtherance of the ecumenical endeavour.
The Lutheran Reformation transformed not only theology and the Church but also law and the State. Despite his early rebuke of law in favour of the gospel, Martin Luther eventually joined up with various jurists and political leaders to craft ambitious legal reforms of Church, State and society on the strength of his new theology, particularly his new two-kingdoms theory. These legal reforms were defined and defended in hundreds of monographs, pamphlets and sermons published by Lutheran writers from the 1520s onwards. They were refined and routinised in equally large numbers of new Reformation ordinances that brought fundamental changes to theology and law, Church and State, marriage and family, criminal law and procedure, and education and charity. Critics have long treated this legal phase of the Reformation as a corruption of Luther's original message of Christian freedom from the strictures of all human laws and traditions. But Luther ultimately realised that he needed the law to stabilise and enforce the new Protestant teachings. Radical theological reforms had made possible fundamental legal reforms, which, in turn, would make those theological reforms palpable. In the course of the 1530s and thereafter, the Lutheran Reformation became in its essence both a theological and a legal reform movement. It struck new balances between law and gospel, rule and equity, order and faith, and structure and spirit.
The concept of dignity has made its way into contemporary discourse on rights after having taken a winding road which intersected secular thinking with religious thinking. Its pervasive utilisation by courts shows its richness as well as its amorphousness. An enquiry into comparative law suggests that the concept of dignity, especially when it is associated with the idea of equality, creates tensions with claims to religious freedom. Such clashes cannot be reconciled on theoretical grounds, but only on practical ones, depending on context and according to proportionality scrutiny.
The Catholic community in early modern England was not only a persecuted minority but full of factions, each playing off the other, expressing themselves in a war of words, and even, on occasion, canvassing for support in the very establishment that was trying to eliminate them. To a large extent, these tensions were focused around the vexed question of what sort of ecclesiastical government should fill the vacuum left by the Reformation and the extinction of the Marian hierarchy. Various canonical solutions were tried: rule by archpriest, vicar apostolic and chapter of secular clergy. Each of these resulted in ongoing disagreements between secular and regular clergy, between those who viewed the English Catholic community as being in continuity with the pre-Reformation Church and those who thought circumstances required something new and creative. Added to this was a complex web of canonical jurisdictions, often without clear definition, and Rome's reluctance to act decisively and offend the Elizabethan or Stuart regime. This article, originally delivered as the Lyndwood Lecture, outlines the key personalities and events and examines the central issues that were at stake in this ‘church without bishops’.
In the New South Wales Supreme Court decision of Anglican Development Fund Diocese of Bathurst v Palmer in December 2015, a single judge of the court held that a large amount of money which had been lent to institutions in the Anglican Diocese of Bathurst, and guaranteed by a letter of comfort issued by the then bishop of the diocese, had to be repaid by the bishop-in-council, including (should it be necessary) levying the necessary funds from the parishes. The lengthy judgment contains a number of interesting comments on the legal personality of church entities and may have long-term implications (and not merely in Australia) for unincorporated, mainstream denominations and their contractual and tortious liability to meet orders for payment of damages. The article discusses the decision and some of those implications.
The theme of the Ecclesiastical Law Society's 2016 Day Conference, ‘Freedom of/from religion’, reflects the growing interest in the idea that, in addition to a right to freedom of religion, there is a right to ‘freedom from’ religion. In recent years, there has been a trend towards increased use of the language of freedom from religion in academic literature and in material produced by practitioners, organisations and activists in discussions of the right to freedom of thought, conscience and religion.
Recent reforms to English and Scots marriage law faced the United Reformed Church (URC) with two challenges. Its hybrid structure of church government, entwining Congregational and Presbyterian strands, complicated application of the statutory criterion ‘persons recognised by [the membership] as competent for the purpose of giving consent’. Precedent from earlier decisions on human sexuality explains the ultimate identification of the local church meeting as the competent council of the URC in England, and why the ‘enabling resolution’ passed regarding civil partnership formation was not repeated. The very different focus of Scots marriage law posed different questions, less focused on buildings or the churches using them and allowing willing celebrants to be nominated by the synod, as for opposite-sex marriage.
Advisers differed on whether the denomination possessed any binding doctrine of marriage which would obstruct implementation of the amended law. The General Assembly decision on polity and how it was reached suggest an implicit ruling in the negative. This article defends that outcome, considering the doctrinal foundation of the URC in the light of concessions made at the formative union. Marriage appears as a topic on which no denominational doctrine exists, letting all councils reach theological conclusions necessary to practical decisions within their remit.
This article considers a number of legal questions surrounding burial and exhumation. Based on an extensive paper given at the Ecclesiastical Law Society's conference in 2015, it builds on previous work by the author in this area and examines the changes in the law brought about by recent case law.
Society has historically viewed suicide with hostility and fear. For centuries this hostility was reflected in the English civil law, which condemned suicide as homicide, and in the Church's position towards suicide victims, which historically considered suicide to be a mortal sin. Under the current canon law, set out in Canon B 38, it is the duty of the minister to bury all parishioners, those who die in the parish, or those entered on the electoral roll of the parish according to the rites of the Church of England, except for (among others) those who ‘being of sound mind have laid violent hands upon themselves’. This canon has come under increasing scrutiny in recent years as society's attitudes towards suicide have become more tolerant. As a result, General Synod recently voted that this canon should be amended. This article explores the development of the law relating to suicide victims in order to understand the Church's current position. It then considers the shortcomings of the current canon law and reviews the position adopted by the Roman Catholic and Methodist churches. Finally, it examines the proposals for changing Canon B 38.
I should make plain at the beginning that I am neither a theologian nor a church historian, and I do not represent the Catholic Church. What follows is merely my understanding of the key documents and some of the key interventions by the Church on the topic of religious freedom over the last fifty years. In writing this comment, I have used a collection of the Church's statements on religious freedom published by the Caritas in Veritate Foundation in Geneva. This foundation is concerned with the social doctrine of the Church and seeks to support the work of the Holy See and other Roman Catholic bodies at the United Nations. Anybody interested in the Church's position on this and related issues will find some useful material on the foundation's website.
The oath taken by British sovereigns at their coronations is laid down by a statute dating from 1688. Any oath taken other than in accordance with the correct statutory form is contrary to law. Taking the authorised form of the oath is a condition on which the crown is held by any individual. The oath taken by the present sovereign omitted the promise to govern according to the statutes agreed upon in Parliament. Any variance from the statutory form is problematic but the clause omitted is the clause that most clearly expresses the central concern of the Williamite settlement. The deficiencies in the oath taken, while reasonably apparent, do not appear to have been judicially recognised hitherto. The legal basis of the present oath has been raised in the political sphere but potential difficulties have been set aside on grounds of expediency. Given the unlawfulness of the oath taken, there is a political and constitutional imperative in establishing that deficiencies in the oath do not fatally taint the reign which follows. This article will advance two possible legal means of reconciling an improper oath with a perfectly valid reign.
‘The manner of appointment [of bishops] reflects the delicate balance between the established nature of the Church of England and its autonomous self-governance.’ As with most matters of Church of England ecclesiology and polity, the process of the appointment of bishops in the Church of England is firmly rooted within the reforms of the sixteenth century, but has origins which stretch back to the mediaeval Church. This comment article focuses on the appointment of diocesan bishops in the Church of England.
A marriage in the Church of England or the Church in Wales may take place following the publication of banns of marriage (preferably during morning service) on three Sundays, by special licence of the Archbishop of Canterbury, by common licence or on the authority of a certificate issued by a superintendent registrar. Reports of the death of the church wedding have been somewhat exaggerated: in 2014, the Church of England conducted almost 50,000 weddings, while the Church in Wales conducted just over 3,000.