Sunday, October 22, 2006

The Anglican Constitution (the Rt. Rev. Joe Morris Doss)

The Anglican Constitution
Brought to Light and Applied to the International Crisis in Anglican Polity
through Comparison with Modalities of Interpretation in
International Constitutional Law

by the Rt. Rev. Joe Morris Doss


[Editor's Note: Joe Morris Doss served parishes in Louisiana and California as an Episcopal priest, and the Diocese of New Jersey as Bishop. An attorney with a background in civil rights, he enjoys a national reputation in and out of the church, primarily as an advocate for justice, and in particular as a champion of minorities, women, and children. Bishop Doss is also recognized in the church as a liturgist, ecumenist, and leader for church reform. He is the author of five books, including a popular memoir about a rescue mission to Cuba, entitled Let the Bastards Go, and a successful play about a man he defended on death row appeals, who was executed on October 30, 1984. He is presently living in Louisiana and consumed with activities to help rebuild after Hurricane Katrina. Bishop Doss personally testifies that he has found most "professional" satisfaction in his skills as a parish priest.]


Preface

When Archbishop Rowan Williams called for the study that led to the Windsor Report, I wrote a longer and more involved letter on this subject to him. After he publicly issued the report, I shared my work with a few friends, who forwarded it through the Internet. I was pleased when a convener of the meeting on November 3-4 of The Episcopal Majority asked me to reduce it to a more manageable size for distribution to participants. (I thank Martha K. Baker, a personal friend and consummate professional, for help in editing this paper.)

When Anglicans disagree, we can debate to our hearts’ content and perhaps agree to disagree, but when Anglican Churches disagree, we need to be able to turn to our Constitution for guidance. The Anglican Constitution brought us into communion with one another, and we should be able to rely on it to hold us together. Our Constitution should protect the individual liberties of the member provinces – most especially from the threat of that “tyranny of the majority” which can form in a given period. In other words, to study where we are in the current conflicts, we should begin by determining if the issues being challenged are constitutional.

A virtue of this primary approach is to put the shoe on the proper foot. The Episcopal Church is being vilified for making changes without sufficient consultation with fellow churches of the Communion, changes that many of those churches find offensive and, more than offensive, heretical.

In fact, the Episcopal Church is not the real agent of change in this crisis.

The movement to include children, women, and gay and lesbian people in the full life of the Church indeed changes Anglican theology and practice. The change is serious, but it is not Constitutional change. The Constitutional changes being demanded in word and deed by leaders who signed the Kigali Communiqué are far more radical: they would change our Anglican identity. If Anglicanism decides to allow bishops to refuse to worship and share communion with fellow baptized Christians, including fellow bishops, the Anglican Church will not be the same. If Anglicanism reduces its comprehensiveness to a conforming set of confessional doctrines, it will not be the same church. If Anglicanism decides to read Scripture literally or in conformity to a single interpretation without attempting objective regard for critical scholarship, it will be a different church. If Anglicanism creates cross-provincial jurisdictions, based upon doctrinal conformity with divisions based upon doctrinal disagreement, it will be a different church. If bishops are increasingly a sign of division in the church rather than a sign of unity, it will be a different church.

Another immediate virtue of applying the Anglican Constitution to the issues is to reject the call to write a new covenant unless it is in the proper Constitutional context. The call is out of order.

I do not intend to flesh out the entire Anglican Constitution – that may be an interesting job for someone at some point, perhaps best when we are not in the throes of a conflict. My method is to ascertain the Articles that are under attack and to examine whether or not proposed changes are acceptable. To do this, I will clearly identify and establish the Articles of the Anglican Constitution being threatened as constitutional through applying recognized modalities of interpretation accepted in international law.

The articles of the Anglican Constitution currently under attack are:

  1. the interlocking traditions concerning Anglican comprehensiveness, the via media, and lex orandi lex credendi
  2. the authority of Scripture, Reason, and Tradition
  3. baptismal bonds and community as communion
  4. episcopal oversight and jurisdiction, provincial autonomy, and the diocese as the basic and local unit of the Church in relation to congregations, the province, and the Anglican Communion
  5. the mission of the Church, especially in terms of justice

Perhaps it will be helpful to set out a clear statement of my presuppositions, which
govern this whole paper.

Presuppositions

  • From time to time in Anglican history, one of the wings or “parties” within the Communion has gained enough power, whether coercive or political, to attempt to conform “Anglicanism” to its definition of the Church or confession of belief. This definition is always narrower than the tradition of Anglican comprehensiveness and, consequently, has never succeeded for long.

  • The Episcopal Church in the United States has made three decisions since 1970 to open the full life of the Church to people who, historically, have been excluded by category in certain defined degrees. The current conflict has been caused by all three decisions, not merely the last. The decisions, in the order they were made, follow:
    1. to allow children to receive communion as fully initiated Christians immediately after baptism and prior to confirmation or a ceremony of “first communion”;
    2. to ordain women to all three orders of ordained ministry;
    3. to ordain gay and lesbian people who have partners in a life-long commitment to all three orders of ordained ministry, and to refuse unconditionally to deny blessing of same-sex unions.
    These decisions have produced increasingly intense conflict within the Anglican Communion; the third decision has provoked the Anglican “Instruments of Unity” to officially take to task the Episcopal Church in the United States and, to a lesser extent, the Anglican Church of Canada.

  • The underlying, although perhaps dominant, issues in the present conflict reveal much deeper resentment against Western powers and Western culture, caused by colonialism and the dominating wealth, power, privilege, and international standing still enjoyed by the industrialized West. The need is to satisfy deep-seated frustration over many forms of repression, condescension, and cultural destruction and to change the moral order that has allowed it. The Western churches are obliged to engage, with manifest and genuine humility, those Anglican provinces that emerged from colonies in the more difficult conversation about Western dominance, but our conversation begins with our acceptance of minority status within the Communion, together with the minority status of certain theological innovations conducive to Western cultural adaptations. The impact of the new relationships and the constitutional dynamic within Anglicanism will be much like the relational and constitutional developments among old colonial powers and emerging non-white nations within the international community of nations, that is, in international constitutional law.

  • Anglican “Instruments of Unity” should uphold and strengthen the Constitution against the subversion of its established Articles while fostering restoration of the moral order that begins with dialogue over the continuing history of Western domination.


The Anglican Constitution

Given our purposes for the coming meeting of The Episcopal Majority, I offer just one Constitutional example using the method stated in the title: the authority of Scripture, Reason, and Tradition.

Richard Hooker, perhaps the most important of the Carolingian divines who polished the Anglican position on authority, posited Scripture, Reason, and Tradition as three strands of a binding rope. Scripture, he insisted, must be interpreted and never taken literally. Hooker defined Tradition not as interpretation but as the history of changing and competing interpretations. Reason, he wrote, is the key. Hooker based unity not on the interpretation of a literal, or magisterium, reading, but on the willingness to live with a variety of interpretations until, over time, one rises to acceptance over the others as true. This is a succinct statement of an article of the Anglican Constitution, and the challenge to it is a constitutional challenge.

The Constitutional challenge to Tradition and Reason as necessary foundations of authority is based on the perception, on the part of many issuing the challenge, that the Bible presents clear rules which everyone should follow as religious law. From this outlook, Christians of every day and age stand under Scripture as a rule that others made, or that God made through human instruments, not a rule that today’s Christians have the authority to make or unmake through interpretation. Under this perception, the Church applies Scripture; it neither makes nor revises it.

In examining the existence and validity of the Anglican Constitution on this point, it is particularly appropriate to turn to constitutional law at the international level. This is so not only because the Anglican Communion is global, but also because of several readily apparent similarities. Take first the way the international community is composed of a society of autonomously governed states in much the same way that the Anglican Communion is an international “society” of autonomously governed provinces. The international society of states and the international Anglican Communion each form a single and united body, unified primarily in the desire to accomplish a common mission and to foster the mission of each component part, while the autonomy of each is recognized and respected. The international community of Anglican provinces look to certain institutions and to a body of tradition, ethos, and custom, which, taken together, compose a governing constitution. It is not coincidental that the Anglican Communion emerged simultaneously with the formation of the modern state in Renaissance Europe. Neither has a written constitution. It was through colonialism and the subsequent rise of new, non-white and non-English-speaking nation states that the international constitution was shaped to operate as it did in the nineteenth and twentieth centuries and that the truly global Anglican Communion was formed.

The tools of international constitutional law have been developed down through the centuries, and by providing legitimating modalities of interpretation, that law is enabled to constitute and maintain the moral order of the society of states and to reconcile states and parties when the moral order is violated.

The following six modalities are not exhaustive (there are other options, such as the theories of Jurgen Habermas), but they are sufficiently comprehensive. No modality is necessarily the captive of the left or the right on the political spectrum, however that spectrum is defined; none should prejudice any argument currently in play. I will explain the application of each modality for interpretation of international constitutional law and then apply each to an interpretation of the Anglican Constitution. I have divided my examination of the six modalities: the first half shares the desire to base interpretations in objectivity and the second, in more subjective criteria.

OBJECTIVISM

The first three modes lean toward objectivism as described in these phrases: “objective interpretation” or “consentual interpretation” or “formal interpretation.” The terms, “formalism” and “consentualism,” are variations on the assumption that only what has been formally consented to can be constitutional law. The more familiar phrase in the United States is “strict constructionism,” so I’ll cheat and use it instead of the language normally applied in international constitutional law. Critics tend to speak disparagingly of these first three modes in terms of rigid legalism. In this view, legal truth, by and large, follows arbitrary rules without necessary relation to any particular content.

The primary question for the strict constructionist is the legitimate source of the law in question. For example, violation of human rights may or may not be considered wrong; but until very recently, international law recognized the right of a sovereign state to violate the rights of its citizens, as long as the violations were properly founded in the law of the land in accord with its procedures and processes. In the latter part of the twentieth century, international law began to be reformulated in a way that allows certain rights of intervention even within the internal affairs of a state. For those committed to an objective interpretation of international constitutional law, the question remains, by and large, one of legitimacy of the particular sovereign state as the source of law.

I. Original Intent

Application to International Constitutional Law

Strict constructionists look to the intention of the particular parties who originally ratified or eventually revised the constitution in question. The aim is to limit any and all interpretations to that original intent and then to enforce rules that claim to carry out that intent. The original intent of the ratifiers or revisers can be found in legislative history (such as in floor debates and media reports) or in evidence (such as articles and books), as to why the constitutional article in question was initiated.

In international law as well as in national laws, this school of thought views only the original intention of the ratifiers as binding, because that intent defines the scope of the consent. Nothing else – certainly no extensions of internal logic or interpretive implications – should become binding, because they will go outside that scope. The appropriate way to expand or change the constitution is to amend it explicitly. Law, it is argued, cannot be the same as politics: it must be a means of independent control that effectively limits the conduct of the entities subject to the law and, in particular, to the reasons for coming together to form an institution or community.

Application to Anglican Constitution

It is possible to apply the strict-constructionist method of original intent to the Church’s search for a polity that should have constitutional status. Opponents of the North American Anglican Churches' claim that writers of Scripture originally intended to compose a code of law or ethics – applicable even in the 21st-century Church.

However, we can hardly claim that writers of Scripture intended any such thing – certainly not one applicable to the 21st-century Christian Church. They intended the codes within the Old Testament to apply to particular people living in a place and time most specific; there were no codes intended in the New Testament. The Bible was not written as moral canon law for the Christian Church.

II. The Text

Application to International Constitutional Law

The objectivist in constitutional international law asks for the “plain meaning”: how does the contemporary “person in the street” understand the promulgated constitutional law? Nothing beats specific language for binding entities to the law, within which legal rules can be distinguished from statements of observation and morality. Most lawyers who follow this mode of interpretation are uncomfortable recognizing the binding nature of anything that becomes constitutional through custom, ethos, and precedent without its being agreed on in writing.

Application to the Anglican Constitution

Those who apply this method of interpretation to Scripture claim that a
“plain reading” of certain passages of Scripture establishes binding rules of conduct. However, given the complexity and subtlety of Scripture, combined with the dynamic between its general purposes and the specific purposes of particular authors, writing to a specific audience at a specific and long remote time in history, it is not possible to rely on such a simplistic reading by any contemporary reader, especially the theologically unversed reader.

The Bible is a library of separate books with a baffling variety of literary forms, composed by numerous and different kinds of authors over many centuries. Some of the writings are quite ancient; some of the earliest are versions of an oral prehistory. Various editors and redactors have re-written, edited and re-edited, or supplemented much of the material with each generation’s contributions. Paul, for example, did not intend to write anything other than pastoral letters to address very specific issues within contemporary communities. Each evangelist had different purposes in mind, but we cannot claim that any of the four presented rules for personal or community conduct in the specific terms of law to be applied universally and for all time.

For at least 25 years, ethicists have agreed that we ought not to apply the Bible “prescriptively,” that is, treat it as a source for moral rules. The consensus is that Scripture speaks to moral life at the level of basic values and principles, not at the level of moral rules. The vast majority of moral theologians rely on a narrative/values-oriented ethic based not on deductive reasoning (going from rules or principles to concrete cases) as much as on inductive, or case-based, reasoning. They also employ analogical reasoning to apply Scripture to contemporary moral issues; for example, they often compare the exodus story to the plight of oppressed and enslaved peoples.

Whether or not anyone accepts the consensus of the contemporary generation of moral theologians and Biblical scholars, Anglicanism does trust that prayerful reasoning can discover in Scripture moral standards for Christian life; however, moral discernment does not take place in a simple reading of the text, isolating and pulling “rules” out of context.

Jurisprudence cannot rely on a “plain reading” of the rules of law for interpretation in each and every case, and the Church cannot extract clear and unequivocal, universally applicable codes of ethical conduct from the Bible. Even if certain readers determine that the intention of a particular text is to bind Christians at the moral-rule level, this demands perspicacity. The specific and concrete application urges consideration of Tradition, and the ancient text will have to be interpreted again and again to fit changed circumstances. Discernment of moral standards and mandatory laws requires the use of Reason; discernment requires an appreciation of the whole text of Scripture; it demands openness to new revelation.

The story of God’s people is a continuing one. It must be taken up by each generation, and no generation merely observes the story. We each participate in it.

The Scriptures relate that story from the beginning of creation and the spread of sin through to the redemption in Christ Jesus and the establishment of his church. From the outset, the Scriptures are headed somewhere; they contain a particular logic and share a common aim. The logic and the aim reveal grand themes about God’s will for human life. Each of the books has to be read and interpreted within the context of the general themes and the conclusions aimed at. Nothing can be read out of that context; certainly, nothing can be used against the aims and purposes of Scripture. According to Christians, the whole of Scripture is aimed at the incarnation, ministry, death and resurrection of Jesus of Nazareth. This defines the entire story of the people of God. From the first words, Scripture is going somewhere, and it arrives. Good news.

Jesus himself is the Word of God incarnate, so we must interpret all Scripture in the light of the gospel revealed in him – in his life and death and resurrection. No readers of the Bible accept as binding every utterance they find in the Bible; different people select what they consider binding in a variety of ways. We recognize Scripture as authoritative in its witness to, and illumination of, the gospel of Jesus Christ. To the point at hand in the Church today: this Jesus welcomed those whom others rejected, and he died as the Rejected One to create a new humanity in which no one is rejected. That is authoritative gospel.

The Scriptures do not make each and every issue that God’s people must address in succeeding generations entirely clear, especially on specific matters of morality and justice. Early Christians found themselves embarrassed by certain matters in the Hebrew Scriptures, including several of the ways the words depict God’s nature. The early Christians had to re-interpret the words and explain how the Old Testament was part of a process of coming to an ever more complete discernment until the fullness of that understanding is defined in the Christ.

But the problem has not simply been with what early Christians began to call the “Old Covenant” books. The Church has discovered itself waking up to awareness that it took wrong positions and actions from time to time and, thus, we are forced to reinterpret certain Scriptures. It’s as though we were not ready to see the matter in its clarity until the time was ripe. When we do so, we find that the call to right action is indeed inherent in our Scriptures; it finally becomes clear to us. It’s as if a fuse set within Scripture exploded only in due course, but, once this happens, we may well wonder how we ever could have missed it.

In European history, the Inquisition and the Crusades include the wrongful use of violence in the name of God. In American history, the striking examples are slavery and sexism. Faithful Christians can be confident that the Paraclete is continually at work to lead us into new truth as revealed in Scripture and in dialogue with an ever-evolving sense of decency and right. We Christians must always be open to this movement of the Spirit.

III. The Structural Inferences

Application to International Constitutional Law

We can examine relationships that a constitution mandates among its structures to discern rules in order to apply those structures properly. The internal structures of the units making up a body politic reveal fundamental principles that yield constitutional dictates we cannot violate – even if written into the text of the Constitution. For example, a state cannot be forced to act against its own self-interests for survival. Two twentieth-century schools of legal thought famously represent the “structuralists”: Communist and Fascist “legal realism” in the 1930s, followed by neo-realists in the United States during the Cold War era. “Structuralists” tend to subordinate all issues to strategic matters.

Application to the Anglican Constitution

Anglican structural inferences, primarily through arguments from silence, support Hooker’s three strands of authority and expose the minority standing of those who would impose Scriptural rules. This is not a strong argument as a general norm. That the structures do not call for uniform adherence to any such rules or confession of faith, other than the statements of apostolic faith resolved in the debates and conflicts of the great ecumenical councils (the outstanding example of the use of Reason to form Tradition based on Scripture) speaks meaningfully about the Anglican Constitution.

I would prefer to argue from the relationships within Anglicanism to make the case against uniform enforcement of Scriptural rules based on conformity of interpretation. There are no means for enforcement. No courts interpret constitutional imperatives and demand enforcement through “executive” action, and the offices and bodies of the Communion are not designed for, nor are they given, authority to hold provinces accountable to any conforming interpretation of purported “rules” of Scripture that dictate forms of governance and provincial behavior. Finally, the provinces are purposefully granted autonomy for governance and conform only in accord with decisions they make in due process of their individual systems.

All structural inferences scream out against an interpretation that finds rules in Scripture and forces us to accept them and apply them throughout the Communion.

SUBJECTIVISM

The second group of three modalities leans toward a more subjective interpretation. Critics think of them as overly depending on politics or on exigencies of the time and place. Judges and other interpreters of constitutional law often consider these variations on “natural law,” although not in the sense that scholastic theology defined the term. They have in common identifying something outside of law (in and of itself) that “naturally” validates the law in question, something that at once transcends concrete instances of law yet remains so fundamental that they must be allowed to govern. It’s not even necessary that everyone agrees on what that something is and on the relation it must have to law in order to make a rule legitimate. Whether or not an interpreter believes in natural law as a transcendent reality, he or she can accept the proposition that legal rules must be in harmony with the “nature” of human beings and the world. For example, jus cogens norms, such as torture, murder, genocide, and slavery, are nonderogable and peremptory, founded in custom and enjoying the highest status within international law. They are binding on all nations and cannot be pre-empted by a nation’s legislation or by treaty.

I. The Precedents

Application to International Constitutional Law
We acknowledge and apply rules generated by previous decisions regarding constitutional interpretation, especially if such a rule, acted upon, becomes custom. Legal doctrines and processes for deciding constitutional law evolve and obtain the authority of legislative law.

Application to the Anglican Constitution

We cannot claim that all precedents support the three strands of authority recognized by Anglicanism – except for the cumulative effect over the centuries. This issue has been the bone of contention in many of the struggles among the many sorts of “parties.” The existence of these “church parties,” beginning with Roman Catholics and Puritans and reflecting to this day an affiliation with one of the other branches of the ecumenical church (Roman Catholic, Protestant, and Eastern Orthodox) has created and maintained and demanded Anglican comprehensiveness.

Nevertheless, as struggles have waxed and waned, with certain parties holding sway for periods of time, Anglicanism has continued to maintain the balance of Scripture, Reason, and Tradition. In Anglican circles, Reason and/or Tradition must, at the least, be given due attention.

We can appreciate the effect of precedents set by any subordination of the role of Reason in relation to Scripture and Tradition: Our imaginations are not taxed to see how radically different Anglicanism would become. We must also consider the effect of such precedents on other branches of the Christian Church and on other faiths. For example, what will occur in those parts of the world where the primary evangelical and cultural competition is with Islam?

An axiom: one who opposes any person or thing with passion and commitment takes on the characteristics of that very person or thing. To avoid this, we must be prayerful and vigilant. The temptation to subvert our own values, methods, and ethos – that is, to fight fire with fire – is most seductive. If we stand against Muslims’ (or Roman Catholics’ or Protestant fundamentalists’) rigidity, claims to certitude, and assumptions concerning sexual morality, those will be the very characteristics that will tempt the Church to emulate.

What is the most desirable precedent to establish in this moment? Are the Anglican churches called to maintain their traditional position and, thereby, continue to apply pressure on other churches and faiths to follow suit, or are the Anglican churches to give in to the pressures of others and conform? Does not Islam, for all its strengths as one of the great world religions of love and compassion, yet have certain characteristics that cry out for reform? Will the future, with all its predictable, globalizing features, make unrelenting demands on all the children of Abraham, not the least of which will challenge women’s roles in Islamic culture and literal reading of the Koran without the benefit of scholarly criticism? We must weigh the dangers of setting new precedents that harm traditional Anglicanism and exercise an unfortunate influence on other faith communities.

One school of thought in international law that the church may look to in the current controversy considers how decisions are made in the process of creating precedent; this school grants the due and fair processes more importance than the case decisions rendered by judges and executive leaders. The idea is that the end results will be just and effective if the processes for legal decision-making that all parties concede to be fair are scrupulously adhered to; legal process is distinct unto itself and is assessed by legal, not political, standards. This mode is usually centered in court and is not so often looked to by the Church because we have no court system. Nevertheless, this mode should carry its weight as it has developed in the course of time and use, and, thus, precedent must not be allowed willy-nilly, but very carefully.

One pressing example is granting alternative pastoral oversight. Doing so can easily feel pastorally sensitive or even strategically clever (i.e., let the matter die of its own weight instead of feeding an atmosphere of dissent), but sets dangerous precedents and eats away at the episcopacy, a symbol of unity.

II. General Ethos and Specific Purpose Underlying a Provision

Application to International Constitutional Law

We vigilantly protect the general ethos of the ideals and culture out of which the constitution was formed and which has shaped the actual life of the institution or community. In international law this mode exalts the fundamental values of world order as the indispensable guide to determining and applying constitutional law. Accepting the insight of legal realism – that law comes down to a continuous process of authoritative decision-making – adds a prescriptive dimension to this descriptive one: a provision of law must, necessarily, maximize the degree to which the desired values of the community are reflected. Thus, instead of merely interpreting the text or summarizing the precedents, the underlying purpose counts decisively when we look to the intent of the ratifiers and amenders of the Constitution. Decision makers must analyze factors that led to writing the text or to forming the provision out of custom and ethos and that also led to the particular decisions setting the precedents. For example, after World War II, the renowned New Haven School of international law empirically determined that the world community founded its expectations on the fundamental principle of human dignity. The common goals of all states in service to citizens, in turn, were defined as security, peace, respect, and the right of citizens to determine their own destinies.

Application to the Anglican Constitution

A hermeneutical maxim, as well established in Scriptural theology as in the law, states that the purpose behind the establishment or the statement of a rule carries greater weight than the rule itself. Obviously, investigative reason and interpretation are required to discern the purpose.

A mandatory rule is a prescription whose authority, by definition, outweighs any reason for setting it aside in a particular case – no exceptions. While playing a game, such as chess or a team contest in sports, the only question for a given moment is, “What is the rule to be applied?” or “Was the rule properly applied?” Only afterward can we question whether it is a good rule, a fair rule, the right rule. A player must abide by the rules of the game and that is that.

A presumptive rule is a prescription whose authority is one reason, not absolute, for heeding it. Such rules are controlling – unless and until we adduce sufficiently mitigating or countervailing grounds against their application in a particular instance. Lay people seem to assume that a statutory law is “the” law, period, a mandatory rule they must obey without exception, as in a game. In actual practice, that cannot be the case, for life does not operate like a game. Most rules in law and morality are presumptive mainly because, once formulated, rules often turn out to include items that their purposes do not warrant and to exclude other things their purposes would otherwise support.

We often look to the intent or purpose of rule-makers for clarification of the meaning. For instance, the term “kill” in the sixth commandment points to the prohibited action, but by what behavior? Does the prohibition mean, or imply, that a soldier may not kill or that a person may not kill in self-defense? Does the term carry the narrower meaning of “murder”? If misapplied or misunderstood in a particular case, the law must clarify the meaning and application. In some cases, the meaning and applicability of the law to the case at hand are clear, but applying the law would produce a harsh or absurd result. In all cases, the underlying purpose always trumps the stated rule.

A law or a rule anticipates a certain pattern of events and circumstances, and, when they occur, that law is to be applied. Obviously, it doesn’t always work out that way. The patterns of facts in a case can fit an applicable rule very well but include other facts and factors not anticipated when the rule was adopted. Thus, the rule cannot be applied as anticipated, and it must be reformulated so that its purpose might be served better.

Applying a rule requires judging whether the case before a court or an institution falls under the fact pattern assumed by the rule; assumptions are, of course, very dangerous to general rules. In one infamous example in law, the court did not grant the murderer of an uncle the inheritance, despite the clear requirement of the law (Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, 1889); the court did not formulate a new legal rationale or find “a way around the law”: it simply allowed the purpose for the inheritance law to serve as guiding principles and values by which the court ruled. As I’ll show in an analysis in which I weigh the balance of the costs against the benefits, the law always contains the equities necessary to cover the exceptional case even when retaining the general rule. Likewise, to fulfill its purpose better, sometimes the Church has to look behind what appears to be a clear moral imperative.

We live in circumstances so different from those of the Scripture writers that the gap between our situations, between our experiences of reality, is too wide for us to place even presumptive confidence in the rules qua rules. So how best do we fulfill the authors’ purposes? In some cases, the Bible speaks at the moral level but applying its rules to our own situations seems harsh or problematic in a way, which leads us to ask whether the rule ought to be applied. These rules include the Gospels’ proscription against divorce and their command that women – with covered heads – shut up in church. Most of contemporary society will not accept facile connections between the Bible and contemporary life. Indeed, when people transfer Biblical precepts from ancient cultural contexts into modern contexts, they often seriously disrupt the relation between the “regulations” and their purposes.

In the same way that the Carolingian divines recognized the cultural conditioning of experience and, thus, of our reasoning, Anglicanism has always understood the cultural conditioning of reading Scripture. Nor does Anglican Tradition state that God’s revelation ended in the written word of Scripture; rather, we Anglicans believe that God reveals the divine life and will in a manner that enlarges upon what we find in the Bible and through what we newly discern in the Bible. For example, theologians relied on the revelation in Scripture to discern evidence of the divine as well as the human nature of Jesus: they did not immediately discover that evidence, nor evidence of the doctrine of the Trinity, in the text. Interestingly enough, the Greek word, “hypostasis,” was the key term employed in the fifth-century definition of Christ as both God and human being in one person, one “hypostasis”; yet, by the fifth century, “hypostasis” had come to mean the exact opposite of what it had meant in New Testament times.

Anglicanism takes the cultural conditioning of the books of the Bible themselves as self-evident. The examples are as many as there are types of literature in the biblical library. Matthew, Mark, Luke, and John shaped the material available for very different purposes for different schools of thought and different sorts of Christian communities. The books of The Kings and of Chronicles tell the same basic stories from different perspectives and with different purposes, as do First and Second Maccabees. Ruth and Ezra, written at about the same time, come to different conclusions about Jews’ marrying foreigners.

To read Scripture intelligently, we need to understand the authors and the people – their needs and the realities of their very particular cultures – to whom they wrote. Anglicans have considered the lack of clarity that comes from being aware of the cultural differences both in the writing and interpreting of Scripture to be a strength, not a weakness.

Thus Anglicans are not reticent to confront the problem of what to do when we judge that a Biblical writer means to speak universally. However, we know that relevant, factual information was unavailable to that Biblical writer and that might be grounds for limiting the applicability of what the author urges. Concerning one of the current debates in the Communion, for example, we make the argument that we cannot define homoerotic activity apart from its social meaning because it differs from culture to culture to such an extent that we should treat Paul’s rule, however universally understood by Paul himself, as viewing only the forms of homosexuality known to Paul, that is, “forming” young men and “enslaving” young men.

At times, because of the advent of new knowledge and understanding, the legal system or a Biblical interpretation may require rethinking not only that which some consider a rule but also its purpose. Sometimes, in the light of contemporary information, we have to judge anew whether all of a purported rule’s premises are correct. We can hardly apply the Biblical prohibition against usury now, because assumptions about lending-at-interest have all changed with our knowledge of the modern discipline of economics. Of course, the purpose remains inviolate: protection of the poor and vulnerable.

Likewise, claiming that homosexuality is “unnatural” is typically based on a conception of empirical facts (or quasi-facts), which were understood within the moral framework that people are biologically heterosexual and inclined to homoerotic activity only by a perverse, immoral choice. Increasingly, the scientific community no longer assumes this theory, and so we must account this new information in making moral judgments.

III. The Balance of Creditable Contrarieties in Terms of Costs and Benefits

Application to International Constitutional Law

Inevitably, we cannot resolve contrarieties or make them complements or harmonize them in every given instance, for example, peace/justice, freedom/order, majority rule/minority self-determination. So we have to ask, What are the specific costs and benefits that determine a balance at a given time in history, according to one or more valued goals recognized as norms for government and international relations?

For this mode of interpretation in international law, we do not confine the standards for, or postures toward, good constitutional government to the constitutional ethos of the units making up the body politic or to its constitutional structure, although they uphold and stand for each. They must be relevant to the constitution itself but may remain entirely extrinsic. Driving governmental concerns in every age become accepted as norms. In our day, civil rights for women and racial minorities and universal franchise have been hard fought for and, then, accepted as norms. Such norms foster the constitutional ethos of an institution. The idea is to find the balance among competing contrarieties that best reflects the over-riding ethos of the constitutional order of the community or body politic. We make the effort to balance the benefits and costs to all parties and to the whole by appeal to governing norms.

Application to the Anglican Constitution

For purposes of examining the balance of costs and benefits of keeping or changing the Anglican reliance upon Scripture, Reason, and Tradition, we need to consider at least two relevant legal theories that apply to Scriptural interpretation: equity and presumption in favor of the exploited.

It is broadly recognized, especially among Biblical theologians, that there is a presumption in favor of according greater weight to countercultural tendencies in Scripture that express the voice of the powerless and the marginalized rather than to those that echo the dominant voice of the culture. Christians are called upon to be in creative dialogue and tension with whatever culture they call their own. Christianity is an incarnational faith. Inevitably, the Church within a particular culture will be a part of it, reflecting its virtues and its ills; some forms of the culture’s faults will always be present in the life of the Church. Hence, faithful witness demands critical examination of assumptions and values of that culture in light of the Church’s mission.

This is so clearly the experience of the Church in all times and in all places that we must read Scripture with a watchful view to the culture’s failure to carry out the mind of Christ. The message of the prophets influences our reading of all Biblical revelation: God is vindicator of the oppressed. God’s word stands against all ideology and all cultural institutions that serve the interests of the powerful in ways that harm the less powerful. Jesus joined with the powerless, the slaves, and the outcasts. Consequently, authentic Biblical witness defies any theology of dominance. Of course, as a human witness, the Bible also carries within itself coded oppression; it too, is a bearer of ideology.

Dietrich Bonhoeffer, the great twentieth-century theologian, who was martyred by the Nazis, wrote of his “view from below”:

We have for once learned to see the great events of world history from below,
from the perspective of the outcast, the suspects, the maltreated, the
powerless, the oppressed, the reviled – in short, from the perspective of those
who suffer…. We have to learn that personal suffering is a more effective key, a
more rewarding principle for exploring the world in thought and action than
personal good fortune. (Letters and Papers from Prison, ed. Eberhard Bethge, New
York: Macmillan, 1972, p. 17)

Gustavo Gutierrez titled one of his books Theology from the Backside of History (Teologia Desde el Reverse de la Historia, Lima: Centro de Estudios y Publicaciones, 1977). Theologian Walter Brueggemann speaks of “the Mosaic revolution … to establish justice as the core focus of Yahweh’s life in the world and Israel’s life with Yahweh.” Moreover, he wrote, “…from the outset, Yahweh is known to be a God committed to the establishment of concrete, sociopolitical justice in a world of massive power organized against justice.” (Theology of the Old Testament: Testimony, Dispute, Advocacy. Minneapolis: Augsburg Fortress Press, 1997, p. 735).

In other words, if we accept the proscription against homoerotic behavior as a moral rule regarding human sexuality, we must balance it against the costs to people whose sexual identity is gay, lesbian, or transgender and to the Church if it supports a cultural prejudice.

In the same way that law always contains the equities, moral-theological considerations should guide hermeneutical choices among conflicting, plausible interpretations. Again, we can see certain substantive themes as governing, respectively, the whole of Scripture and of law, and, thus, we recognize them as general guides for interpretation. A specific example of a substantive standard for the interpretation of a specific case is the old Roman principle, adapted specifically into English law, of interpreting the law “in favor of liberty.” An example in Scripture is the commandment to love God and neighbor as one’s self. We generally understand this summary of the law as the purpose and unity of Scripture, which constitutes a governing hermeneutical standard: We should interpret and practice all Scripture in accord with the summary of the law by Jesus.

The most famous early Christian example of the recognition of this “rule of love,” as it came to be known in the tradition, is found in Augustine. He identifies the purpose of Scripture as love for God and neighbor in Book 1 of De Doctrina Christiana (1.84-85 [XXXV-XXXVI]). Augustine insists that Biblical language must be construed “figuratively” in any case in which the literal meaning of a passage of Scripture does not promote love of God and neighbor (“good morals”) or “true faith” (3.33[X]). Augustine endorses this figurative interpretation against the literal meaning on the grounds that the hermeneutical rule of charity favors it.

Aristotle and Aquinas are two celebrated sources for an understanding of law not simply as a set of authoritative rules but as a tradition with substantive standards and ideals. Aristotle defines “equity,” epieikeia, as the correction of legal justice in cases where it is defective owing to the universality of law (Nicomachean Ethics 5.10). No general rule can adequately do justice to all situations; hence, equity is necessary as a substantive jurisprudential norm in cases where applying the letter of the law would violate justice. In this view, substituting equity for the letter of the law is itself a form of legal justice. Modern legal scholars, and perhaps practitioners of international constitutional law in particular, continue to find substantive principles as part and parcel of the law and, therefore, as hermeneutical guides to its interpretation. Common practice in law appeals to extrinsic norms for guidance. Internationally, these norms, as explained earlier, include important rights, such as human rights, that governments are to establish and protect. The society of nations hold that equity should have primacy in such cases even where there is no dispute about meaning and applicability.

The Anglican Constitution contains balanced consideration of Scripture, Reason, and Tradition in search for authoritative theological truth. Our comprehensiveness and balanced method for discerning authority is our very strength. They are not signs of weakness. Openness to Reason and Tradition, together with Scripture, is not relativism. Openness demonstrates the confidence of our faith that enables us to live with the ambiguity of human life under the rule of God.

We are never going to be able to solve our disagreements about women, children, and human sexuality straight out of Scripture. The issues before Anglicanism regarding inclusion of gay and lesbian people, the ordination of women, and the role of children, are not ones of Biblical authority. The issue is one of biblical interpretation.

An examination of the Anglican Constitution, using the modalities of interpretation available in international constitutional law, makes it abundantly clear that Anglicans form a Communion not because we hold every important belief and reading of Scripture in common, but because we all hold dear to the only thing in common that counts: the Christ.

Therefore, at this time in the history of the Anglican Communion, we must not allow differing approaches to Scripture to become mutually exclusive.

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