THE ARCHBISHOP’S EXAMINATION IN THEOLOGY An exploration of the basis of legal authority in the Anglican Church in New Zealand A thesis submitted for the Degree of Master of Arts by Noel Stanley Bertie Cox December 2004 ii DEDICATION The study of the canon law is a holy study, because the canon law itself is a very holy thing, and among all holy studies we venture to say none is more sacred than that of the jus canonicum . Not even mystical theology itself, treating though it does of the sublimest truths and deepest mysteries touching the divine espousals of the Christian Soul with God, not even this awful department of the great science is more sacred than is the sacred jurisprudence of the Church. So wrote the Rev’d. Canon Edmund Wood in 1888, in The Regal Power of the Church ed. Eric Kemp (1948) 10. While this thesis extends beyond the narrower confines of the canon law, it is a sacred rather than a profane study. It is therefore with due diffidence that I, a layman, dedicate this work to the Most Reverend Te Whakahuihui Vercoe, Archbishop and Primate of the Anglican Church in Aotearoa, New Zealand and Polynesia. iii iv ABSTRACT This thesis is an exploration of the basis of the legal authority of the Church. It takes as its example the Anglican Church in Aotearoa, New Zealand and Polynesia. It begins with an examination of the sources of fundamental authority within the Church, especially divine law as a superior source of law. This is followed by a brief look at the history and origins of canon law, the spiritual law of the Church. The legal position of the Church within the wider legal system is then examined, specifically within its original English setting. In particular, the development of the legal foundations of the Church in New Zealand is analysed. The next step is an examination of the possible models which might be said to describe the situation of the Church in New Zealand – of dis- established churches, and non-established churches. In the first the church was once subject to the control of the secular power but has since then become autonomous. In the second the church was never subject to the control of secular authority, but rather relied upon an internal legal authority – itself derived in part from divine law. The doctrine of consensual compact, the secular legal basis for church law, is then examined, along with the applicability of pre-existing canonical systems. In the first is examined the concept that the authority of the Church is derived from the agreement of its members, rather than imposed by an external authority. In the second the position of canon law inherited from a non-consensual model of church is examined. In particular, the effect of having a consensual basis for the authority of the church is that the canon law, the law which the church has itself enacted, cannot generally be enforced directly by the secular power. v However, even if the church law of the Anglican Church in New Zealand is based upon the consensus of the members of the Church, the laws of the State also have an important part to play. In particular, not only is the Church, as a juridical body, subject to the law of the land, it also has relied upon the State for the enactment of certain laws. This includes the very laws under which the Church constitution and canons are created. The Church is, to some extent, limited in its autonomy by this dependence upon a secular legal authority. This has been necessitated by the evolution of the Church in New Zealand, and is also a legacy of the pre-colonial Church of England. This is also affected by the lack of an indigenous method or style of approach in the exposition of ecclesiastical law. In conclusion, it is asked whether the concept of separation of church and State, so influential in many parts of the world, has been overstated in this country. It is postulated that an absolute separation is alien to both the secular and spiritual laws. The true situation is an incomplete separation, but one which reflects the historical evolution of the English Church, particularly but not exclusively post-Reformation. Thus the legal authority of the Church also partakes of this twin basis. The Church is neither established nor dis-established. The Anglican Church in New Zealand may be classified broadly as quasi-established in the sense that whilst having the status of contractual societies, there are significant legal links between the church and State, the authority of internal Church law rests at least in part upon the existence of secular legislation, and secular legislation expressly and directly regulates some of the temporal affairs of the Church. This is perhaps the legacy of a secular legalistic approach to jurisdiction. This is not to say that the State accords any special privileges to the Anglican Church, or that it is in any sense a State Church. But the evolution of the jurisprudence of the vi Church, and the form and nature of the secular legal system, owe much to a shared history. The thesis then moves to an evaluation of the nature of the authority vested in the legislative, judicial and ministerial arms of the Church. The authority of General Synod, of the church courts, and of the bishops and clergy are assessed. In particular, following from the conclusion in Chapter 2, that Church authority derives from both secular and religious sources – both of which can be seen as reflecting the divine will – the basis of authority of each arm is reviewed. It will be shown that in each case the basis of authority is a mixture of human and divine law, some made manifest through secular agencies, some through temporal agencies. The ways in which the Church is administered has also been influenced by the secular legal system, and by the role of the State in society in New Zealand. It has also been heavily influenced by the existence of the Treaty of Waitangi, an 1840 agreement between the British colonial authorities and the indigenous Maori people, as have the administrative and legislative systems of the Church. As a consequence of this agreement the Church is now run on a multi-cultural or multi- racial model, with power distributed between the non-Maori and Maori sections of the Church. This has also influenced the treatment of the former missionary diocese of Polynesia, which also partakes of the shared power within the Church. These diverging influences are each seen as a reflection of the divine within the church, and the evolution of the structure of the Church in New Zealand an ongoing attempt to reflect a true Fellowship within the One, Holy, Catholic, and Apostolic Church, within a changeful, and increasingly secular, world. vii viii ACKNOWLEDGEMENTS I would like to express my thanks and appreciation to my Supervisor, Professor Norman Doe, of the University of Wales Cardiff, for guiding me through the process of researching and writing this thesis. Acknowledgment is also due to all those who have assisted me, especially those who gave of their time to discuss various aspects of the law of the church and State in New Zealand. Thanks are due particularly to the late Hon. Sir David Beattie, Professor Jonathan Boston, the Rev’d. Richard Girdwood, the Rt. Hon. Sir Douglas Graham, Hugo Judd, Esq., the Rt. Hon. Justice Sir Kenneth Keith, Dr. Andrew Ladley, the Rt. Hon. David Lange, Associate Professor Elizabeth McLeay, the Rt. Rev’d. Sir Paul Reeves, the Hon Georgina te Heuheu, and Dame Catherine Tizard. I also wish to acknowledge the support of my late mother, Mrs Dorothy Cox. ix x TABLE OF CONTENTS DEDICATION........................................................................................iii ABSTRACT ............................................................................................ v ACKNOWLEDGEMENTS .................................................................... ix TABLE OF CONTENTS ........................................................................ xi ABBREVIATIONS ..............................................................................xiii INTRODUCTION ................................................................................... 1 CHAPTER 1 – SOURCES OF AUTHORITY – ECCLESIASTICAL..... 5 I Introduction ................................................................................. 5 II Sources of authority in a church................................................. 10 III Divine Law as a Superior Source ............................................... 16 IV History and Origins of Canon Law............................................. 26 V Conclusions ............................................................................... 37 CHAPTER 2 – SOURCES OF AUTHORITY – SECULAR .................. 40 I The Legal Position of the Church............................................... 40 II Dis-established and Non-Established Churches and the Doctrine of Consensual Compact ........................................................ 45 III The Applicability of Pre-Existing Canonical Systems ................ 72 IV The Anglican Church in New Zealand ....................................... 79 V The treatment of the Anglican Church in statute......................... 95 VI Conclusions ............................................................................. 104 CHAPTER 3 – THE NATURE OF LEGISLATIVE POWER .............. 106 I Distribution and Control .......................................................... 106 II The Institution and its Composition.......................................... 112 III Legislative Power: Synodical Acts..........................................