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Law and ecclesiastical polity

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The passing of Resolution A049 to authorize rites of blessing for same-sex couples was a cause of joy for many, and a cause of sadness for others. But one way or the other, the resolution has created something of a theological puzzle—for what does it mean to “authorize” rites that declare God’s blessing upon same-sex unions, while at the same time stipulating that those rites are “provisional,” and cannot be performed without the permission of the diocesan bishop? What status does such a rite possess when it manifestly has not reached the level of consensus within even the Episcopal Church, let alone among the increasingly divided Anglican Communion and our ecumenical partners?

Given these issues, the theological difficulty is clear: In what sense can it now be said that with the passage of this resolution by General Convention, a priest of the one, holy, catholic, and apostolic church may now declare God’s blessing upon the union of same-sex couples? Is it not the case that any such blessing would have to be bestowed, as it were, only “provisionally”—with the implication that “this Word of God is for trial use”? And if so, how can it possibly carry the authoritative weight of the church’s apostolic blessing?

Bishop Stephen Miller of the diocese of Milwaukee suggested during debate that the rites be offered to the church not as ecclesially “authorized,” but instead as “commended” as a means of generous pastoral response to same-sex couples. While doing so would have been not without problems of its own, it would have been the wiser course to take—for at bottom, that is all that General Convention has done and could have done given the state of the church’s reflection on the issue. We have not yet reached the point where it would be possible for the church genuinely to authorize such rites in the name of her Lord, notwithstanding the contention that correct procedures have been followed and majority votes attained.

At the deepest level, ecclesial law is not made that way, no matter how much the parliamentary appearance of General Convention (where even time is organized into “legislative days”) may seduce us into supposing that it is. In a recent Living Church article co-authored with Victoria Heard, I argued that the standard-issue understanding of law and politics in the Episcopal Church, as in other mainline churches, owes too much to secular parallels and not enough to theological reflection. The passage of Resolution A049 is, to my mind, a further demonstration of this unfortunate state of affairs. Our judicial actions have outrun their theological warrant, and we find ourselves now in a state of considerable contradiction. In what follows, I hope to shed at least some light on what it means to talk about law in the church, in the conviction that we very desperately need to go back to first principles and think theologically rather than merely judicially about ecclesial law.

1. Lex orandi, lex credendi: Law and Common Worship

The South Carolina deputation’s choice to walk out of General Convention at the passage of A049, while perhaps unnecessary, is only a rather dramatic enactment of what has in fact taken place—we have for the first time created a rite of worship that the whole church cannot share in common, contradicting the classical Anglican conviction that common prayer and common worship are central to our unity in Christ. The Indianapolis Statement’s lament that the rite “subverts the teaching of the Book of Common Prayer” amounts to the same thing—it is a rite the prayers of which we cannot pray together, and just as such is a tear in the fabric of our common life.

It is often said that the issue of sexuality is a disagreement with which the church should be able to live, with room for those of opposed convictions in a united, comprehensive church. This is often said out of a genuine liberality of spirit; Dean Ian Markham of Virginia Seminary has joined many in arguing that Episcopal conservatives should be not only allowed to live their convictions with integrity, but also welcomed in the church as needed voices. Such sentiments clearly were at work in the wording of A049, with the generous addition of a “conscience clause” modeled on the Port St. Lucie statement. But while welcome, this posture has not yet grappled seriously enough with the increasingly deep divisions that have opened up in the church.

Disagreement, as the Catholic theologian John Courtney Murray often said, is in fact a rare and welcome achievement—much of what passes for disagreement is mere confusion, the babbling of people who no longer share a common language. The Lutheran theologian Bernd Wannenwetsch, in his pathbreaking book Political Worship, explains such failures of understanding by pointing to a saying of Ludwig Wittgenstein: “If language is to be used as a means of communication,” he wrote, “there must be agreement not only in definitions but also (queer as this may sound) in judgments.” This is finally true, Wittgenstein wrote, because “to imagine a language is to imagine a form of life.” As Wannenwetsch explains, “Agreement in judgments springs from a shared ethos, and at the same time sustains that ethos. The specific forms of the shared social context of living determine the way things are perceived and the terms deployed. Where different forms of life intersect, on the other hand, or where there is no prevailing form of life at all, equivocations lurk. We think we understand, but in fact we are at cross purposes.” “Moral discussion,” Wannenwetsch warns, “is especially prone to this failure.”

Moral and doctrinal laws truly possess the normative status of law when they flow naturally out of the worshiping church’s life together as the body of Christ, when they form the taken for granted fabric of belief and practice that hold us together as a people. As Wannenwetsch argues, common worship gives rise to a shared ethos, the agreement in judgments that undergirds common language and allows us to speak about both God and the moral life. Far from shutting down disagreement, this common language in fact enables it—for instead of the confusion of equivocation, we are enabled to disagree intelligibly about the goods of the Christian life, in such a manner that genuine consensus becomes a possibility. We may argue, for instance, about whether private charity or public provision is the best way to care for the poor, or about what immigration laws are required to do justice to the alien in our midst, but our arguments only have form because of our shared understanding that the poor and the alien among us are to be cherished and cared for, rather than despised for their weakness or cast out as barbarians. And we would not share this if not for the fact that we are joined together in common worship of our Lord, the one who told us of the Good Samaritan and sought out the lost and the least.

To Anglicans, this line of thought should sound familiar. As Michael Ramsey liked to say, Anglicans do their theology to the sound of church-bells—what we believe is inseparable from how we worship; the law of prayer is the law of belief. Anglicans historically have been reticent to pin down the “essentials” of doctrine in any precise manner, and instead have required conformity to certain received church practices, chief among them common worship and the common reading of Scripture. In other words, instead of the Augsburg Confession or a pope, we have a common language and form of life, handed down to us in ordinal and prayer book.

Common worship, however, is increasingly a memory of the Anglican past. It is perhaps not often enough noted that the balkanization of the Episcopal Church (and the larger Anglican world) may well owe a great deal to the proliferation of ecclesial forms of life corresponding to different forms of worship—Rite 1, Rite 2, choose-your-own “Rite 3,” Enriching Our Worship, the 1662 prayer book, the New Zealand prayer book, and so on. As our common inheritance has fragmented, so too has our common ecclesial life. We struggle to communicate because we struggle to share a language; focal terms like “mission,” “Gospel,” “hierarchy,” “sin” and “communion” lack shared reference; conversations break down and move to the courts.

Some kind of plurality in liturgical and musical form, of course, has long been a commonplace in the church’s life, but genuine discord in form is deeply problematic. At bottom, “worship wars” and liturgical struggles are so distressing to many because they raise fundamental questions: Are we any longer worshiping the same God? And if not, is it not the case that we are no longer one body? Is the deity named “Creator, Redeemer, and Sustainer” the same as the Father, Son, and Holy Spirit? Must we humbly kneel before the throne of mercy for access to the Father for Christ’s sake, or may we confidently stand in God’s presence with no need to confess our sins? Are we proclaiming what God has done for us in Christ, or what we can do to help God’s dream come true? Are we declaring the forgiveness of sins, or are we assuaging feelings of guilt? And are we declaring God’s blessing upon what God has not blessed?

Liturgical forms that do not join Christians together in common worship, by expressing discordant rather than harmonious judgments about God and the Christian life, have fundamentally failed at their purpose. A rite of Christian worship in which the whole church cannot participate is an oxymoron. To create a “provisional” rite of blessing for same-sex unions, with the express knowledge that the rite cannot and will not be authorized by a substantial portion of even the Episcopal Church (and already stands rejected by the wider Instruments of Communion), is to have set forth a contradiction in terms.

2. Law and Common Counsel

Participants in General Convention often describe their experience as like being a small cog in a giant legislative machine. There is too much business to attend to everything with the care it requires; there are too many people to allow for genuine deliberation instead of microphone sound-bites; the sheer procedural complexity of it all makes it difficult at times to even understand what is being voted on, and allows those skilled in the dark arts of parliamentary maneuver to have a disproportionate influence. By the end, innumerable resolutions have been passed covering everything from statehood for the District of Columbia to sexual ethics, but how many of them can be said to represent the considered judgment of the apostolic church in the name of her Lord?

Bernd Wannenwetsch, drawing upon the work of Gabriel Hebert, makes a crucial distinction between parliaments and councils. Parliaments are in essence vast machines that exist to turn majority opinion into law, and to do so quickly in the face of the pressing need for decisions. They are not meant to foster consensus (think of the shouting match that is Prime Minister’s question time), but rather to reach an outcome satisfactory to the majority. Councils, on the other hand, are explicitly ordered toward reaching consensus in the truth. They are unhurried, for they regard it as far more important to speak with one voice in God’s name than it is to make a decision. They know that truth often does not lie with the majority, or with those skilled in debate—just as often, truth lies with the dogged few (like Athanasius and his party, contra mundum) or with the still, small voice of those possessed of holiness and wisdom rather than articulacy and political skill.

Unlike parliaments, councils do not make laws by legislative fiat, by imposing the will of the majority upon all and sundry. Rather, councils know that law in the church is begotten not made, recognized as part of the logic of the Logos, the Word of the Father who created the world, became incarnate in the person of Jesus Christ, and bears witness to himself by his Spirit. As such, true church laws are not made by parliaments, but in council—through the timely process of taking counsel together as the body of Christ, hearts lifted up in worship and prayer to a common object of love, joined together at the Eucharistic table in one common life, and gathered around the common reading of the Scriptures. As we are joined together in one faith, one Lord, and one baptism, we discover as we take counsel together how God has knit all created things together in Christ, and how we might as Christ’s body order our common life in lives of harmonious variety. Here, as Richard Hooker knew, is where the laws of ecclesiastical polity are found.

Any student of church history knows, of course, that the church’s record on this point is decidedly mixed. But even the church’s failures demonstrate the necessity of conciliarism—the Great Schism between East and West, for instance, turned on the lack of genuine consensus in support of the addition of the filioque clause to the creed. Legislation simply has no power to paper over real division, and often inflames it. Our presiding bishop has spoken wisely on this point, decrying the political processes that wind up dividing the church into winners and losers.

There is, of course, a place for parliamentary procedure and democratic decision-making in the church’s life. On some matters, decisions must indeed be made—what shall the budget look like? Who qualifies for the pension fund? Shall we sell headquarters in New York and move somewhere more affordable? But on other matters, when we cannot yet speak with a common voice, we must learn how to wait—not endlessly, but in the expectation that the Holy Spirit will guide us in God’s time into all truth.

Moreover, if counsel is to be genuinely common, it must involve all those whose life it affects—as the ancient dictum has it, what affects all is to be decided by all. One often hears it said that the Episcopal Church is autonomous, and must remain so if she is to preach and live the Christian faith in her particular context. To a certain extent, this is of course true. But the issue of contextualization requires considerably more nuance than is often allowed. Oliver O’Donovan puts it well in his Church in Crisis: it is, he points out, incoherent to tell someone that while I think what you are doing is morally wrong, you should go on doing it all the same. Genuine pluralism is possible, given contextual difference—in some cultures, O’Donovan explains, arranged marriages might make the most sense given circumstances, while at the same time in our own we are right to hold that young people should be free to choose their own mates. But it is another thing altogether to hold that in some cultures it is quite all right to sell young females into sexual bondage, while in our own it is nonetheless wrong. The lesson is clear: some divergences in matters of faith and life will be quite justified given contextual difference, while others will not.

Some things, in other words, will be heretical and immoral anywhere, given the determinate contours of the apostolic Gospel and God’s creation. And if we are to be able to tell the difference between legitimate and illegitimate divergence, we need the voices of people who stand at some distance from our cultural location, who can see things with fresh eyes and tell us where we’ve gone off the rails. Everyone knows that Episcopalians are a relatively homogenous group, even for all our efforts at inclusion and diversity—we are largely white, affluent, educated, older, and of course American. This is where, in the end, our cherished autonomy and our claims to have discerned the movement of the Spirit ring hollow.

Ephraim Radner argues in his important article “Authority Under Larger Authority” (TLC, 14 Nov. 2011) that General Convention’s legislative authority is properly seen as diaconal and custodial, in service of a larger catholic process of Christian reasoning that faithfully preserves what it has been given for the sake of the whole church throughout the world. In matters particular to our context, we can and should take counsel together about how best to proclaim the Gospel in our time and place. But in all else, we stand in need of the counsel of others, of our Anglican brothers and sisters from around the globe and from the wider Christian oecumene. In one sense, it was wise of this summer’s convention to decline to take a position on the Anglican Covenant—we are indeed not yet of one mind, and so we were right to wait. But it remains the best avenue we have to begin seriously taking counsel together with the entire Anglican family, not just within our rather small and parochial household of faith.

General Convention, in short, ought to be not a parliament, but a council—and she will only be a true council when ordered toward the common life of the broken body of Christ in all places.

3. Canon Law and the Canon of Scripture

No discussion of ecclesial law can be complete without finally turning to the canon of Scripture, the authoritative kanon or rule by which the church’s life is measured. As the Yale theologian David Kelsey reminded us years ago in Proving Doctrine, it is axiomatic to say that the Scriptures are authoritative for the church, for that is the very definition of what it is to call a book canonical Scripture. But to say that, Kelsey goes on to point out, is not to have thereby resolved all issues, but instead to have started in on a highly contested discussion.

Dean Ian Markham has observed that conservatives are needed voices in the Episcopal Church, because they refuse to allow the question of biblical faithfulness to take a back seat. The Indianapolis Statement bishops placed the issue front and center in their dissent to A049: “We believe,” they wrote, “that the Scriptures clearly teach that God’s vision for sexual intimacy is that it be exercised only within the context of marriage between a man and a woman… Our dissent from this action of the 77th General Convention is thus rooted in the teachings of our own Church; in the historic biblical and theological witness upon which those teachings rest.”

Careful work by biblical exegetes such as Richard Hays and Robert Gagnon has made it highly difficult to dismiss the claim that the Indianapolis Statement puts forward—the biblical witness concerning homosexual conduct, Hays and Gagnon contend, is clear and unequivocal, unlike that with respect to women’s ordination or divorce and remarriage. At the very least, then, it must be said that the Indianapolis Statement bishops have put forth a serious and weighty charge to which supporters of A049 must respond—has General Convention in fact been disobedient to the canonical Scriptures, the “rule and ultimate standard of faith” for the life of the church?

As Oliver O’Donovan has argued, to agree with Hays and Gagnon on the exegesis of Scripture does not yet end the theological discussion, for there yet remains the difficult task of exegeting the world. Is it the case that the phenomenon of homosexual identity, which Michel Foucault and others have shown to be a unique feature of the modern world, is a new thing that the canonical Scriptures and their historic reading in church tradition were not equipped to address? Or is it rather the case that it is a result of what St. Paul called a culture given over to idolatry; an attempt to grasp after a secure identity in a world that has exchanged substantive communal traditions for the will-o’-the-wisp of happiness construed as the endless pursuit of individual, internal desires?

O’Donovan is quite right, as is David Kelsey, to hold that a firm commitment to the authority of Scripture cannot bypass such difficulties; we must address what Rowan Williams called the “further questions” that the biblical text raises precisely because we must always ask ourselves whether we remain obedient to Scripture in this particular context.

But once we have done so, through reading the Scriptures in common worship and common counsel, we must recognize that canon law is in the end subordinate to the canon of Scripture. The tradition has long held canon law to be divided into two parts—divine law, unchangeable and given by God, and ecclesiastical law, made by human beings to order the church’s life in accordance with divine law. Ecclesiastical laws may take on a variety of forms, so long as they are fit for their ultimate purpose, but if they conflict with divine law they are null and void.

The actions of General Convention this summer have run the risk of doing so, meriting what Bishop Mark Lawrence of South Carolina called his “grievous concern.” The 77th General Convention has attempted to authorize that which the plain and canonical sense of Scripture prima facie forbids, without the consensus of the Episcopal Church, the Anglican Communion, or the wider church catholic, and in doing so has created a rite of worship in which the whole body of Christ cannot share. It has not, in short, authorized what it purports to authorize. Bishop Andrew Waldo of upstate South Carolina said in floor debate that while he wanted to vote for A049, he could not do so since the theological warrant for it did not yet exist. If more had followed his lead, it would have been the better part of wisdom.

In their 1992 volume The Crisis in Moral Teaching in the Episcopal Church, Philip Turner and Timothy Sedgwick argued that our church in large part has failed to articulate a clear and coherent moral vision; that we have failed to be a “teaching church,” and so have become too captive to the passing winds of culture and politics. Few would argue that matters have improved since then. Our failure to formulate together the genuinely normative ecclesial laws that emerge naturally out of a common life and language has meant that positive law and judicial fiat have arisen to take their place, as our many court battles and transparently political Title IV accusations demonstrate.

We have the opportunity over the next few years to change the parliamentary shape of General Convention, to re-examine old assumptions and habits and think afresh about how we might take counsel together to discover truly authoritative laws for the church. Our judicial reach at present far exceeds our theological grasp, but nothing prevents us from following Richard Hooker’s lead and thinking again about law and ecclesiastical polity.

Jordan Hylden, a doctoral candidate in theology and ethics at Duke Divinity School, is a candidate for holy orders in the Diocese of North Dakota. Republished with permission from the Anglican Communion Institute.

11 Responses to “Law and ecclesiastical polity”

  1. I thought that this was a wonderful piece.

    First, in terms of section III, which is about Scripture: you don’t actually argue from Scripture so much offer an argument about what others say about Scripture. So, is this section about Scripture or is it about the theology of canon, whether applied to Scripture or anything else?

    I ask this because, in my opinion, the problem with the Episcopal Church is less that it disregards the canon of Scripture, and more that it disregards the very concept of canon itself. Just look at how the ecclesiastical canons are abused: ++Schori has never been called to trial over Bede Parry+, the Eucharist is flagrantly given to the non-baptized, there remains (to my understanding) an open question about whether +Duncan was excommunicated according to the canons, etc. And despite these abuses, as soon as property is involved, the Dennis canon is enacted with all the severity one might imagine. The canonical chaos in our church is really quite unparalleled in Anglican/Episcopal history.

    Second, the history of canon law is an interest of mine, although my own reading on point is scattered and cursory at best. I am wondering, though, where natural law is to be found in dividing between divine and ecclesiastical law? Surely it is something of an additional category, yes? Or am I misunderstanding this particular point (which is quite possible!)?

    I ask this because although your article is not about the naturalness of same-sexuality, in giving a place to nature and natural law, one can at least work out a theory of society and a social ethics – much like Hooker does in the Lawes, or Aristotle does in the Politics and the Nicomachean Ethics. There are certain ways of relating which are born of nature – society is itself natural! – and other ways of relating which, in destroying relationships, are unnatural. Thus the transgression of the Episcopal Church at present is not just against God (divine law), but also against its neighbors (natural law), whether within or beyond the specific canonical confines of membership in the Episcopal Church.

    Again, this is a great piece, and I look forward to your response.

  2. Jordan Hylden says:

    Thanks, Ben. First, Scripture– you’re right, I’m talking here about what it means to regard Scripture as kanon, rather than about what that normative pressure requires in this context.

    And I agree that TEC has not had the best track record in its application of canon law to itself. I think this is a subset of the larger problem of the theological and ecclesiological deficit in our regard for law.

    As for natural law– I was well aware that I was leaving out a very important piece of the puzzle. It can’t be ignored and the way we think about it has direct implications for this issue. Thoughtful revisionists like Eugene Rogers know this and take on the issue directly. Broadly speaking, natural law can be seen as part of divine law, since it describes our created ordering. Hooker certainly knew this well, as you point out.

    Thanks for the thoughtful comments!

  3. Craig Uffman says:

    Jordan, I don’t disagree with the thrust of your argument, but I do have questions of method in our reasoning as we call the Church to a Christocentric ordering. One question I had while reading this has to do with your claims about ecclesiastical polity and, in particular, the meaning of divine law. You write:

    The tradition has long held canon law to be divided into two parts—divine law, unchangeable and given by God, and ecclesiastical law, made by human beings to order the church’s life in accordance with divine law. Ecclesiastical laws may take on a variety of forms, so long as they are fit for their ultimate purpose, but if they conflict with divine law they are null and void.

    I’d like to know more about what you mean by divine law, for, that is the crux, is it not? You seem to imply that Scripture and divine law are identical. You allude obliquely in your article to Hooker twice, so I infer that your understanding of divine law is drawing from Hooker. Or is there some other source whose definition of divine law you are using? For Hooker, Scripture and divine law are not identical, though they are closely related. His understanding is much more like that of the 13th century Scholastics whose conception of the categories of law was far more complex than sola Scriptura. For Hooker, sola Scriptura, (as for Calvin) applied to matters essential to salvation, not to all matters of ethics. The Cambridge Calvinists (one set of his intellectual antagonists) insisted on a much more expansive understanding of that slogan, extracting “universal principles” from Scripture and treating those principles as divine/universal law. Is your reference to Hays’ exegesis and subsequent categorization of the biblical injunction as divine law more like Hooker, or more like Perkins and the Cambridge Calvinists?

    What are you assuming about how we know the content of the divine law? Also, when you claim that tradition has long held divine law to be unchangeable, what is your source? Do you see any cases in which divine law changes/has changed? Hooker does.

    Again, I appreciate the gist of the argument. My questions have to do with clarifying the claims we make as we reason in support of that argument.

  4. Jordan Hylden says:

    Thanks, Craig. I didn’t mean to imply that Scripture is to be equated with divine law, though I can see how one might read me that way. And in the debate btw. Hooker and the Cambridge Calvinists, I certainly side with Hooker.

    Not quite sure what you’d mean by saying that divine law changes. Hooker famously wrote (bk. 5): “What Scripture doth plainly deliver, to that the first place both of credit and obedience is due; the next whereunto is whatsoever any man can necessarily conclude by force of reason [JH: he included the Trinity in this category]; after these the voice of the Church succeedeth.”

    So, here Hooker is making the classical claim that there are some things that the church just can’t change. Traditionally, this is divided into two kinds: natural and positive Divine law. One can find this sort of claim in the old Catholic Encyclopedia:

    “The ultimate source of canon law is God, Whose will is manifested either by the very nature of things (natural Divine law), or by Revelation (positive Divine law). Both are contained in the Scriptures and in Tradition. Positive Divine law cannot contradict natural law; it rather confirms it and renders it more definite. The Church accepts and considers both as sovereign binding laws which it can interpret but can not modify; however, it does not discover natural law by philosophic speculation; it receives it, with positive Divine law, from God through His inspired Books, though this does not imply a confusion of the two kinds of Divine law. Of the Old Law the Church has preserved in addition to the Decalogue some precepts closely allied to natural law, e.g. certain matrimonial impediments; as to the other laws given by God to His chosen people, it considers them to have been ritual and declares them abrogated by Jesus Christ. Or rather, Jesus Christ, the Lawgiver of the spiritual society founded by Him (Con. Trid., Sess. VI, “De justif.”, can. I), has replaced them by the fundamental laws which He gave His Church. This Christian Divine law, if we may so call it, is found in the Gospels, in the Apostolic writings, in the living Tradition, which transmits laws as well as dogmas. On this positive Divine law depend the essential principles of the Church’s constitution, the primacy, the episcopacy, the essential elements of Divine worship and the Sacraments, the indissolubility of marriage, etc. Again, to attain its sublime end, the Church, endowed by its Founder with legislative power, makes laws in conformity with natural and Divine law.”

    Does that help?

  5. Craig Uffman says:

    Jordan,

    Your claim that “Hooker is making the classical claim that there are some things that the church just can’t change” is surely correct. But that is different from speaking of the immutability of divine law. Hooker clearly did not affirm the immutability of divine law; indeed, quite the opposite. I think the clarity we need has to do with the categories of natural and divine law. The definition of natural law was not the same across time and even among contemporaries in the centuries leading up to Hooker.

    On Natural Law, may I commend: Porter, Jean. 1999. Natural and Divine Law: Reclaiming the Tradition for Christian Ethics (Saint Paul University Series in Ethics). Wm. B. Eerdmans Publishing Company. Porter is a Notre Dame professor of theology and ethics, Yale PhD, who writes as such in this book, relying upon the work of historians. Per Porter, one has to be careful to distinguish between the 20th century post-Kantian/ Enlightenment versions of natural law and that of the Scholastic tradition (which was what Hooker studied). Perhaps the most important point is that natural law was not in that period a set of rules at all, but rather a set of principles arrived at using Aristotelian dialectic method (from 13th c onward), which meant that it was an ongoing creation of the community. These principles were applied locally, which is to say that there was much less a sense of a universal ethic than became the understanding after the rise of 17th c federal Calvinism; there were principles in the sense of Aristotle’s endoxa; the principles themselves were seen as phenomena that still needed to be tested by all those seeking truth. The divine law was a constituent part of natural law, not something apart from it, standing in judgment of it, but rather something from which the natural law was seen to be drawn and which continued to inform reasoning about the endoxa. Here’s how Porter describes it: the scholastic concept of the natural law is a scriptural concept in three related senses: the scholastics justify appeals to the natural law on scriptural grounds; they derive much of the concrete moral content of the natural law from Scripture; and at the same time, they employ their overall concept of the natural law as a framework for interpreting Scripture as a moral document. In this way, the scholastics treat nature, reason, and Scripture as three mutually interpreting sources for moral norms.

    With regard to the definition of natural law:

    The canonist Stephen of Tournai, writing in about 1160, offers a summary of the most common definitions: “And it should be noted that the natural law is spoken of in four senses. For we speak of a natural law which is introduced by nature itself, and is not placed only in the human person, but also in other animals, from which derive the union of male and female and the procreation and education of children. The law of nations, which takes its origin from human nature alone, as it were beginning with it, is also said to be a natural law. The divine law, which our highest nature, that is, God, taught us, and placed before us through the law and the prophets and the gospel, is also said to be natural law. We also speak of a natural law which includes at once both human and divine law, and also that law which is placed in all animals by nature. And according to this last understanding, something is established “by natural law, that is, by divine, and that other primitive law.” Or, if you can stand a fifth understanding of the natural law, understand, that is said to be the natural law which is placed by nature in the human person alone, and not the other animals, namely, [a faculty directed towards] doing good and avoiding evil. This is, as it were, a part of the divine law (Weigand no. 244-46). Stephen of Tournai was the first, but he was scarcely the last, to offer this kind of listing of the various possible senses of the term “natural law.”

    Now let’s turn to Hooker. He mostly follows Aquinas. Hooker turns in chapter 15 of Volume 1 to a discussion of the general use of scripture, especially highlighting the mutability of certain positive laws found in scripture. First he lists the four kinds of law he has introduced: (1) laws imposed by man himself, (2) laws imposed by public society, (3) laws imposed “by all the nations of men upon every several society, or (4) laws imposed “by the Lord himself upon any or every of these.” (1.15.1) He then points out that “there is not amongst these four kinds any one but containeth sundry both natural and positive laws. Impossible it is but that they should fall into a number of gross errors who only take such laws for positive, as having been made or invented of men and holding this position hold also that all positive and none but positive laws are mutable. Laws natural do always bind, laws positive not so, but only after they have been expressly and wittingly imposed.” (1.15.1) He clarifies, “although no laws but positive be mutable, yet all are not mutable which be positive. Positive laws are either permanent or else changeable, according as the matter itself is concerning which they were first made.” (1.15.1)

    Hooker claimed that laws proclaimed by God and tied to men are immutable. As we shall see below, ‘tied to men’ turns out to be equivalent to “essential to salvation” as it is with the magisterial Reformers. “Wherefore to end with a general rule concerning all the laws which God hath tied men unto: those laws divine that belong whether naturally or supernaturally either to men as men or to men as they live in political society, or to men as they are of that political society which is the Church, without any further respect had unto any such variable accident as the state of men and of societies of men and of the Church itself in this world is subject unto, all laws that so belong unto men, they belong forever, yea, although they be positive laws, unless being positive God himself which made them alter them.” (1.15.3)

    In contrast, laws governing dynamic entities are mutable. “On the other side laws that were made for men or societies or Churches, in regard of their being such as they do not always continue, but may perhaps be clean otherwise a while after, and so may require to be otherwise ordered than before: the laws of God himself which are of this nature, no man indued with common sense will ever deny to be of a different constitution from the former, in respect of the one’s constancy, and the mutability of the other. And this doth seem to have been the very cause why Saint John doth so peculiarly termed the doctrine that teacheth salvation by Jesus Christ, “Evangelium aeternum, an eternal Gospel” because there can be no reason wherefore the publishing thereof should be taken away, and any other instead of it proclaimed, as long as the world doth continue, whereas the whole law of rites and ceremonies, although delivered with so great solemnity, is notwithstanding clean abrogated, inasmuch as it had but temporary cause of God’s ordaining it.” (1.15.3)

    Now let’s turn to Volume III. Here we see where God’s law are understood to be mutable. “Whether God be the author of laws by authorizing the power of men whereby they are made, or by delivering them made immediately from himself, by word only, or in writing also, or howsoever, notwithstanding the authority of their maker, the mutability of that end for which they are made doth also make them changeable.” (3.10.2) The best example of the mutability of divine law, besides the easy example of ceremonial law, has to do with the ordering of the church. The presbyterians (or Disciplinarians, as Torrance Kirby calls them) argued for a presbyterian polity, including the elimination of bishops. In refuting this claim, Hooker makes the point about the mutability of God’s laws (subject to the exclusion of matters essential to salvation): “they which defend it devised it; that neither Christ nor his apostles at any time taught it but the contrary. If therefore we did seek to maintain that which most advantageth our own cause, the very best way for us and the strongest against them were to hold even as they do that in scripture there must needs be found some particular form of church polity which God hath instituted and which that very cause belongeth to all churches, to all times. But with any such partial eye to respect ourselves and by cunning to make these things seem the truest which are the fittest to serve our purpose is a thing which we neither like nor mean to follow. Wherefore that which we take to be generally true concerning the mutability of laws the same we have plainly delivered” (3.10.8).

    When claiming the imprimatur of Hooker, I would caution against citing a Roman dictionary as though it is somehow representative of Hooker. If often may be, since in many things he was consistent with Aquinas and Augustine. However, Hooker’s basic claim against his antagonists was that his way (the Settlement) was more in keeping with the magisterial Reformers than the proposals of those favoring Genevan polity. He was not arguing for a middle way, but rather arguing that the Geneva way was the wrong way. If we rely upon a Roman source, we need to be careful not to suggest that Hooker held what the Roman source claims.

  6. Craig Uffman says:

    One other, important note, Jordan. Back to the question of what we mean by divine law. Your argument seems to be that homosexuality is against divine law because Scripture forbids it, and divine law is immutable. I have joined the discussion strictly in terms of your allusions to Hooker. I made the point above that the immutable divine law for Hooker is that which is necessary to salvation. Another datum is found in Laws I.3.1, where Hooker offers various definitions of the categories of law. Divine law, he says, is “that which bindeth them, and is not known but by special revelation from God.” For Hooker, that which is known by special revelation alone is that which is made known only through Christocentric immediacy; that is, our hearts and mind are turned to recognize what God has done in Christ and how we are a part of that story. The proscription of homosexuality would likely have been understood by Hooker in terms of natural law, as I have described it above.

  7. Craig Uffman says:

    So how might Hooker have made your argument in terms of natural law rather than divine law (which, as noted above, would not have been in the category of divine law)?

    See chapter 8 of Book 1. I think we see there how he would argue.

    First, Hooker offers a definition of a law. “But the nature of goodness being thus ample, a law is properly that which reason in such sort defineth to be good that it must be done. And the law of reason or humane nature is that which men by discourse of natural reasons have rightly found out themselves to be all for ever bound unto in their actions.” (1.8.8).

    Then, he describes the marks by which we recognize the laws of reason. Note that these laws are investigable by reason alone: “Such as keep them resemble most lively in their voluntary actions that very manner of working which nature her self doth necessarily observe in the course of the whole world….Secondly those law are investigable by reason without the help of revelation supernatural and divine. Finally in such sort they are investigable that the knowledge of them is general, the world has always been acquainted with them….” (I.8.9)

    Hooker then offers a definition of the laws of reason which names them as universal: “And to conclude, the general principles thereof are such, as it is not easy to find men ignorant of them. Law rational therefore which men commonly use to call the law of nature, meaning thereby the law which humane nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason; this law, I say, comprehendeth all those things which men by the light of their natural understanding evidently know, or at leastwise may know, to be beseeming or unbeseeming, virtuous or vicious, good or evil for them to do.” (I.8.9)

    The question arises, however, if the laws of reason are natural, why do so many sin? Hooker answers that “I deny not but lewd and wicked custom beginning perhaps at the first among few, afterwards spreading into greater multitudes, and so continuing from time to time, may be of force even in plain things to smother the light of natural understanding, because men will not bend their wits to examine whether things wherewith they have been accustomed be good or evil.” (I.8.11)

  8. Jordan Hylden says:

    Thanks for your detailed comments, Craig. My apologies for the lag time in response. I doubt that I’ll be able to do justice to all of your concerns but I’ll see what I can do.

    1) You write: “Your argument seems to be that homosexuality is against divine law because Scripture forbids it, and divine law is immutable.” No, that’s not quite my argument. I didn’t make that conclusion w/r/t homosexuality; that’s why I brought up O’Donovan on the necessary work of discernment, in judging whether we are obedient to the Scriptures in our contexts. My intent was to suggest that ECUSA needs to be able to show that it is in fact obedient to the divine law as witnessed to in the Scriptures, not to say that they are in fact disobedient. This and other arguments in my piece were, in a sense, procedural rather than substantive.

    2) I think we’re being led astray by terminology. Torrance Kirby has a nice, short summary of how Hooker divides up the various kinds of law: “The idea of law is fundamentally threefold. First there is the law ‘which God hath eternallie purposed himself in all his works to observe.’ This eternal law is the ‘highest welspring and fountaine’ of all other kinds of law. While there is a great variety of derivative forms of law, they are contained, as it were, within two principal kinds: the law of nature and the revealed law of scripture. The latter is often referred to by Hooker as the divine law, which is not to be confused with the eternal law. These three summa genera– eternal law, natural law, and divine law– together constitute a comprehensive division of the ‘kinds’ of law.” Elsewhere, Kirby explains that (broadly speaking) natural law denotes the determinate pattern of Creation, while divine law denotes God’s definitive acts of redemption/salvation.

    Now, the Catholic tradition tends not to use this terminology (as I cited from the C. Encyc.). But what they share with Hooker is more important than differences in words. Basically, they both follow Aquinas; they’re not voluntarists or nominalists. God is Logos, and God has ordered the world in a certain way, acted definitively for its redemption, and to this we have determinate witness in the Scriptures.

    That’s all I’m really getting at, Craig. Does that help answer your concerns?

  9. Craig Uffman says:

    Yes, they both follow Aristotle via Aquinas. My main point has to do with locating homosexuality within the domain of natural law and not divine law. Kirby says what I’ve been saying when he describes the divine law in terms of God’s definitive acts of redemption/salvation. Your immutability argument belongs there, not with natural law.

    Natural law, in contrast, was (until the 17th c) dialectically discerned, and not a listing of rules but rather of principles to be applied locally. Local positive law flowed from this. It was theological in that Scripture informed the natural law and natural law informed biblical hermeneutics, but that which Scripture said was not identified with the natural law. That is, reason was used to discern where Scripture described natural law and where it did not so that the result was an understanding of natural law that looked a lot like the decalogue and the golden rule but which excluded that which was not observed as being universal in nature. The Scholastics were quite brilliant in this, as Porter describes.

    Therefore, I agree with your assertion that “ECUSA needs to be able to show that it is in fact obedient to the divine law as witnessed to in the Scriptures.” But I understand that to mean that TEC needs to show that its actions are obedient to “God’s definitive acts of redemption/salvation.” Period. That’s quite different from an argument that TEC needs to be able to show that Hays is wrong in terms of the biblical witness about human sexuality.

  10. Jordan Hylden says:

    Ah, I think we’re getting closer. Good.

    Ok, so: If we’re staying with Hooker, he had a robust sense of the immutability of the revealed law of Scripture. As Rowan Williams says, “I doubt whether [Hooker] could have entertained any idea that the moral law set out in Scripture was anything other than lastingly valid.” Torrance Kirby: “In order to be properly understood, the natural law must be considered in relation to both its originative source, the eternal law, and its twin, as it were, the revealed law of scripture. Scripture attests to the common source of these summa genera of law in God himself: “Doth not the Apostle term the law of nature even as the Evangelist doth the law of Scripture, dikaioma tou Theou, God’s own righteous ordinance?”

    So, it seems to me that Hooker would probably say that ECUSA does indeed need to be able to show that Hays is wrong about the plain and canonical sense of Scripture. O’Donovan would add, however, that the biblical exegesis is not the end of the matter, for we still need to exegete the world– RW’s “further questions” still apply.

  11. Craig Uffman says:

    Moral law would have referred to the decalogue and Golden Rule primarily and would have been a natural law category for Hooker. Its very nature would have been as endoxa – phenomena with which one begins one’s exploration but which is always testable in an Aristotelian sense. The point being that the natural law was not a static thing at the time but rather a dialectically discerned set of principles applied locally (very important to Hooker in his argument with the presbyterians) and discerned communally. If Hooker would insist on an exegetical proof pace Hays, it would not be from a hermeneutic that lifts universal principles out of Scripture and applies them (which is what Perkins et al advocated), but rather with a hermeneutic that begins with the particular and leverages Scripture, nature, and the endoxa in reasoning toward a principle that itself is particular. What’s important here is not his likely conclusion (no doubt he could not imagine homosexuality as anything other than a choice of the lesser good (his way of thinking of sin). What I am trying to have us focus on is his method.

    I agree that this says it quite well: “the biblical exegesis is not the end of the matter, for we still need to exegete the world– RW’s “further questions” still apply.”

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