Legal Flexibility and the Mission of the Church:
Dispensation and economy in the ecclesiastical law
Church Times Bookshop £45 (Use code CT374 - free postage
on UK online orders during August)
FOR most of the general public, the expression "legal
flexibility" might be something of an oxymoron. The law is
popularly regarded as rigid, restrictive, and unbending. On a
proper analysis, however, law is facilitative and enabling, and
nowhere is this more evident than in the canonical tradition of the
Western Christian Church.
Dr Adam's book, therefore, is a welcome addition to the
burgeoning corpus of ecclesiastical-law literature, providing a
long-overdue modern treatment of an ancient concept and established
practice of some Churches - namely, dispensation from compliance
with the strict rigour of a particular law, and the more illusory
concept of economy as being episcopally approved law-breaking.
The value of the book lies largely in its coverage of the
historic development of the Catholic practice of dispensation and,
particularly, its implicit relevance to 19th-century disputes over
church ritual and the controversy surrounding the 1928 Prayer
Of course, the modern ecclesiastical law of the Church of
England has lost dispensation as a general overarching concept, and
replaced it with express exemptions and savings within specific
Measures, Canons, Rules, Regulations, and Codes of Practice. An
obvious example is Canon C4(3A), by which an archbishop may grant a
faculty for the removal of the impediment from ordination
constituted by marriage after divorce. Detailed directions exist as
a form of quasi-legislation prescribing how this dispensing
provision is to be exercised in individual cases.
The Church of England is not impoverished by having
re-articulated the Early Church's general principle of economy in
this way. Far from it, because clarity, certainty, and
predictability are essential features of any legal system. But, as
long ago as 1980, Lord Wilberforce railed against "the austerity of
tabulated legalism", and encouraged the generous reading of
statutory provisions when circumstances permitted.
The existence of an appropriate degree of flexibility within
English canon law should be preserved, nurtured and developed in a
coherent and orderly manner. Adam's book provides meaningful
evidence of how such concepts have been successfully utilised in
the past and might be recovered for further use in the future.
Law-makers and legal practitioners in the Church of England must
never lose sight of the exhortation in Corinthians that the letter
killeth, but the spirit giveth life.
The Worshipful Mark Hill QC is Chancellor of the diocese of
Chichester and the diocese in Europe, Hon. Professor at the Centre
for Law and Religion, Cardiff University, and President of the
European Consortium for Church and State Research.