Humour · Life at the Bar

What Type of Law Should I Do (Part VI – an Xmas Special)

Ecclesiastical Law

I feel slightly fraudulent doing this, because my sort of ecclesiastical law is practised in the London Beth Din (a recognised Tribunal under the Arbitration Acts) and differs from the Court of Appeal in only a few ways. Firstly, beards are not mandatory in the Court of Appeal. Secondly, in my experience the Court of Appeal doesn’t consume diet Coca-Cola by the crate. Thirdly, the Court of Appeal do not expect you to join them in religious services and finally no Court of Appeal Judge has yet stood at the entrance to the RCJ for the specific purpose of wishing me a safe journey home. However, Ecclesiastical Law normally means the Consistory Courts and – if you’re really lucky – the Court of Arches (in the basement of which the famous case of Flanagan v Allen was litigated).

This all stems from the fact that when the secular authorities decided that they should be in charge of burning people alive for heresy, seeing how much of someone you could remove from their body before they actually died and generally keeping the population levels down so that the Black Death didn’t have to work too hard, the Church got all sulky. Accordingly a deal was done and Church Courts retained jurisdiction over the clergy. The ecclesiastical powers that be came to the view that if all the really interesting punishments were going to be taken away from them they weren’t going to be stuck with pathetic stuff like sticking someone’s head between two pieces of wood and inviting the community to take pot shots at them with whatever came to hand. Rather, they would let God decide.

It consequently became of some importance to be able to assert that one was a clergyman and thus claim ‘benefit of clergy’. This was done by reading – it being felt that the average non-clerical Englishman was far too busy practising archery, rioting, getting drunk and killing Frenchmen to do poncey things like learning to read. Consequently men asserting a clerical qualification would read a set verse from the Bible. If they did this successfully they got the ‘benefit of clergy’. This did not mean that they were then entitled to go into the orphanages and interfere with the children – a misconception that proved difficult to eradicate amongst some communities. It meant that the Church would discipline them rather than the State – usually by a little light whipping coupled with a description of the torments of hell and – much feared – a twice-daily sermon.

This only applied to men. Women who could read the Bible were obviously witches and were dealt with appropriately.

The Church was also in charge of saying that you could not divorce your spouse because God had apparently made it clear that you should remain with someone who made you miserable and/or to whom you were no longer committed because it showed you how serious it was to be married – or something like that. The only way to get round this was to be King, have lots of money, a huge army and a disinclination to permit anyone to tell you what to do. God would then understand your position and would back off.

Nowadays the Church takes the view that what God really, really wants is that no one should be offended or made to feel in the slightest uncomfortable. Divorce is no longer a problem because God currently wishes everyone to have whatever they want. Ecclesiastical Law is now about decommissioning Churches, deconsecrating graveyards and exhuming the odd body. However, it is also about how you get rid of your Vicar when he or she has offended his or her congregation. This offense can be caused in traditional ways – usually involving extra-marital activity – or in new ways – such as by ministering to a conservative parish and asserting that Richard Dawkins’ essential idea is spot on although he could express himself less confrontationally.

Advantages: it provides a way of reconciling one’s profession and one’s beliefs. The atmosphere is gentle and gentlemanly. The Courts are relatively informal and the work tends to be more or less straightforward (can a telephone mast be erected in the Church car park?) or particularly interesting (can the fiftieth eye-witness to the Dean’s dalliance with the Organist’s wife kindly step into the witness box and tell us everything she saw and then everything she conjectured?). There is work around: almost anything can be ‘unbecoming a clerk in Holy Orders’ and because God does not want anyone to be offended, by anything, ever, the standard of offence is whatever Sir Bufton Tufton wishes it to be. Think your Curate looks better in green and that pink vestments are taking it a bit far? Your Bishop is waiting for your complaint.

Disadvantages: you are expected to be a member of the Church (Chancellors of Dioceses must be communicants), which may be a problem if you spend most Friday 13ths offering Wiccan sacrifices and dancing naked round an old oak tree. It can be dull and, eventually, the small-minded manoeuvrings which bedevil small communities will start firstly to bore and then to depress you. Voicing the view that God may have other things to worry about will make you more unpopular than Dawkins. Your plumber will expect salacious stories of what happened when the Canon met the Organist’s wife (hurr, hurr, what ‘appened to his shot then?) and will treat you to his views about how the Church is too  soft/harsh/trying to be trendy/out of date. Professionally, few will hear of you and when you apply for advancement they will wonder why you became becalmed in this rather recondite area of law.

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7 thoughts on “What Type of Law Should I Do (Part VI – an Xmas Special)

  1. Plenty of work, you say? Fine. What – forgive me – is the money like? And does one have to know theology? I hope so, because I rather enjoy theology: Anselm’s Ontological Argument for the existence of God, Spinoza’s mathematical one etc.

    1. It’ll be paid like private crime and regulatory so the money will be ok. Theology is unnecessary if not positively discouraged. This is employment law in a frock.

  2. Simon, after a day spent poring over adverse possession and human rights defences to possession orders, this was just the laugh I needed. Absolutely hilarious. Cheers for this.

    -John Jarvis

  3. This brings back fun memories of my legal research project on the BVC which concerned changes which had been made to a grade II listed Church of England building and the rigmarole that has to be gone through to do this (and the consequences if not done correctly). Funnily enough, I walk through my local churchyard on my way to the station every morning. The church (grade II listed) is currently being repaired, so I was interested to note that all the requisite notices and permissions from the diocese had been displayed at the entrance! The project also made me realise why chancel repair liability might be a huge problem if you buy an old house near a church and gave me an understanding of who technically owns / is responsible for which parts of the church. Definitely an interesting area of law!

  4. Much as I appreciate the evolution of ecclesiastical law is a caricature, unravelling the caricature should be quite interesting to anyone with a broader interest in law. The first thing to consider is that the Western tradition has grow up with a ‘church’ and ‘state’ distinction: each is distinct with its own set of laws and jurisdiction, but they interpenetrate as part of the broader society. This fact is easy to take for granted in our less religious age. Does Islam or Judaism or Hinduism have this distinction? The answer is no. Law is purely religious; the rules and regulations that govern the speed limit in Arab countries (for instance) are less like our the conception of secular law than bureaucracy.

    In the period you send up, ecclesiastical jurisdiction was (theoretically at least) superior to secular jurisdiction, and the tension between secular and ecclesiastical jurisdiction in relation to bastardy litigation and the removal of lay forces of ecclesiastical land is a worthy research topic. In fact, what you see in the period is more compromise than conflict: the Church was happy to use the secular arm as an enforcer where ecclesiastical justice had little practical effect; in terms of jurisdiction, by and large, moral and spiritual matters remained under the Church’s remit (marriage for instance). The Canon Law should be seen as the laws governing the conduct of the clergy and how they should administer the sacraments to the laity. Hence it was natural that if a clergyman had committed a breach of canon law or something that was a moral or spiritual matter he would end up in the ecclesiastical courts. If it was an issue for secular justice it was highly unlikely the clergyman could escape the royal courts: the Curia Regis Rolls and the Eyre Rolls are full of clerics being brought to justice.

    Your comment on marriage is interesting precisely because it is so wide of the mark. In the period you send up there was no conception of divorce as we know it i.e. a marriage that validly existed being declared dissolved but to have existed. A valid marriage was indissoluble. This was less God’s will than the symbolic appropriateness of Christ’s marriage to the Church and the marriage of a man and a woman. This did not prevent people not living together should they hate their partner, but if the marriage was valid, without any impediments, it could not be dissolved and neither partner could re-marry (until one partner died). If there were impediments to the marriage (usually that the marriage violated the ‘incest’ prohibition which prohibited marriage between people with a common great x 6 grandfather at its largest extent) you could get an annulment which in effect said the marriage never existed. Indeed a whole series of highly formalised, rationalised canon law grew up around this principle of monogamy and indissolubility. It was so successful that not even the most powerful monarchs in europe could not get an annulment unless there case fitted the canon law no matter how big their army and how much pressure they but on the pope (including Lothar II, Phillip Augustus, and Philip the Fair: note also that Henry VIII split from the Church of Rome before his case with Catherine of Aragon got to the Papal Curia, and in fact there was a loophole he could have pursued to win his divorce under canon law. The facts of the case were that Catherine had married Henry’s brother Arthur which would have violated the incest prohibition by creating an affinity relationship in the first degree assuming there had been consummation (which Catherine denied). Henry’s initial argument was that a man should not marry his brother’s wife, an argument based on a biblical passage and which depended in part on consummation. Within the canon law system you could apply for a dispensation against any impediment and Catherine’s parents had done exactly this, but this dispensation was for the affinity impediment. Had Henry altered his position and accepted that the marriage had not been consummated, he could have argued the dispensation did not cover the impediment, the impediment not being affinity, but rather, justice of public honesty i.e. a dispensation for a marriage that looks suspect but in fact has no impediments.) Why is this important? True it is hardly pertinent to contemporary practice, but it does illuminate aspects of our legal tradition that we are ignorant of: let us not be narrow-minded lawyers!

    As a side note, consider why marriage (even of those great men and kings) came under the jurisdiction of the Church which made it both indissoluble and monogamous (this medieval model of marriage is unique in world history in this way.) The answer? The great men were able to pay lip service to the canon law until it was sufficiently tightened up, playing off the principle of indissolubility against the incest prohibition (i.e. like King John you marry someone you know you are related to, don’t get the dispensation as an ace up your sleeve to dissolve the marriage when it suited.) The crucial point was that the canon law dictated primogeniture: it made it clear who was legitimate and therefore who could inherit. The Church became the gate-keeper of secular concerns (remember my point about the interpenetrating yet distinct secular and ecclesiastical jurisdictions) and thus once the canon law tightened up, the great men were stuck in the Church’s system.

    1. Interesting comment.

      You may well be right that no other system distinguishes between church and state law, and it’s certainly true that the distinction has had an enormous impact, but all religions have had to wrestle with what their particular Holy Book does not say. Judaism – about which I know a little – arguably does that in distinguishing between laws in the Torah and rabbinic subsidiary legislation. True, the rabbinic exegesis is said to be as authoritative as the Torah but that is as against competing interpretations, rather than as against the Torah itself. It strikes me that secular law in a Christian Society serves precisely the same function – to deal with those issues upon which biblical scripture is silent.

      The Jewish approach is to parse the text: to take your speed limit example, Jewish Law might say that it was merely an application of the biblical injunction not to put a stumbling block in front of a blind man, or perhaps of the rule that a roof had to have rails. The essence of each is that you owed a duty to your neighbour: the requirement not to speed is simply a derivation of that rule. Having rejected the concept of a comprehensive system of religious does and don’ts – largely because converts were simply not having it – Christianity was forced to create a separate system and thereby acknowledged that religious rules were not comprehensive save for members of religious orders.

      Once that happened the issue arose as to who would be dominant. Such conflicts tended to revolve around personal status, firstly because most societies can agree that social laws are reasonable and secondly because personal status matters to religions as much (and perhaps more) than it matters to secular authorities. In Judaism these tensions have historically centred on the status of abandoned wives, bastards and converts. In each case the Rabbis have interpreted the Torah as restrictively as possible. In Christianity – perhaps because Christians transformed marriage from a personal contract (as it is in Judaism) to a religious status, and perhaps because inheritance mattered more (Jews being unable to own land for long stretches within this period) – the tensions often centred on marriage, which the Church interpreted as strictly as possible. When I say ‘as possible’ I mean that the clerics in question maintained as much control as the society in which they lived would permit.

      I entirely take your point that this religious control of marriage at one time served everyone’s interests. Yet in country after country, when the system of canon law became inconvenient to secular power, it was allowed to lapse or was interpreted conveniently. My caricature is based on the underlying truth that Canon Law was doomed the minute it acknowledged that the non-religious could properly make some laws. From then on the Church’s ability to proclaim and enforce what it said was the will of God was dependant either on friendly enforcement by the secular authorities or on the Church’s own ability to enforce its rulings. As people lost their fear of going to hell, there was only one winner.

      Judaism provides an alternative model – that of acknowledging that secular power holds the immediate cards, but of applying moral pressure (or blackmail if you prefer). Whether the increased penetration of symbolism, ritual and celebration in the Jewish community compared to the nominally Christian community will hold good as even the undeclared barriers to assimilation come down remains to be seen. Even in my lifetime there was a fairly obvious limit on, for example, the number of Jews on the High Court Bench and such discrimination served to unite the community discriminated against. Now that it has gone we shall have to see whether the proposition that your whole life can be lived by the prescriptions of your religion is a more successful one than the division of power which Christianity has proposed.

      If I offended you by taking your religion or beliefs too lightly then I apologise. This wasn’t supposed to be more than a laugh, but if I got such laughs as there might be too cheaply I am sorry.

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