1 A version of this paper was presented for the Ecclesiological Investigations Group at the 2007 American Academy of Religion annual meeting in San Diego, CA, under the title: ‘Foundations of unity in canon law: the Church of Nigeria and the Anglican Communion’, on 19 November 2007.

2 Lambeth Commission on Communion, The Windsor Report 2004 (London, 2004), para 99.

3 Windsor Report, para 53.

4 I will examine only the revision of Chapter 1. See <http://www.anglican-nig.org/Onitsha2005_pressls2.htm>, accessed 2 December 2007. Constitution of the Church of Nigeria, 1(3): ‘(1) The Church of Nigeria (Anglican Communion) … shall be in full communion with all Anglican Churches[,] Dioceses and Provinces that hold and maintain the Historic Faith, Doctrine, Sacrament and Discipline of the one Holy, Catholic, and Apostolic Church as the Lord has commanded in His holy word and as the same are received as taught in the Book of Common Prayer and the ordinal of 1662 and in the Thirty-Nine Articles of Religion.

‘(2) In the interpretation of the aforementioned formularies and in all questions of Faith, Doctrine and Discipline, the decisions of the Ecclesiastical tribunals of the Church of Nigeria shall be final.’

5 See N Doe, ‘Communion and autonomy in Anglicanism: nature and maintenance’, pp 15–16, available at <http://www.anglicancommunion.org/commission/process/lc_commission/docs/autonomy.pdf>, accessed 2 December 2007. Identifying the constituent elements of the Chicago-Lambeth Quadrilateral as ‘instruments of faith’ helpfully allows juxtaposition with the ‘instruments of unity’.

6 Represented in particular by the See of Canterbury as the episcopal focus of Anglican unity. See J Rees, ‘The Anglican Communion: does it exist?’, (1998) 5 Ecc LJ 15, and J Paterson, ‘Structural changes in the Anglican Communion’, (2006) 4 Journal of Anglican Studies 254.

7 Windsor Report, para 97.

8 Windsor Report, para 123.

9 ‘On a canonical level, the laws of most churches make no explicit reference, in their provisions on self-identity, to the See of Canterbury.’ Australia, Japan and Melanesia are mentioned in particular. (Doe, ‘Communion and autonomy in Anglicanism’, p 8.)

10 Windsor Report, para 29(1).

11 ‘Acceptance of an individual Province's view of orthodoxy becomes the basis for relationship. Further, the revision of its Constitution states that in all questions of interpretation of faith and doctrine the decision of the Church of Nigeria shall be final.

‘As a Primate of the Anglican Communion I find the implications of this revision most serious. Am I alone in interpreting such wording as the removal of established bonds of communion and their replacement by a Provincial-only wide authority which will set its own criteria for whoever or whatever it considers worthy of a communion relationship?’ In ‘Where now for world Anglicanism?’, lecture delivered by R Eames, 12 October 2005, Berkeley Divinity School at Yale. Anglican Communion News Service (ACNS) 4048, 14 October 2005.

12 ‘[W]hat does such a rupture of relationships mean to other Provinces if broken communion refers to the See of Canterbury? The commutations for ecclesiology in such instances are immense. They underline again that “bonds of affection” based on fraternal gestures alone were never geared to meet the challenge of division.’ In ‘The Anglican Communion: a growing reality’, lecture delivered by R Eames, 4 October 2005, Virginia Theological Seminary. ACNS 4041, 5 October 2005.

13 Constitution of the Church of Nigeria, Chapter 9(39)(c).

14 Ibid, Chapter 16(75)(8).

15 Claiming our Anglican Identity: the case against the Episcopal Church, USA (Colorado Springs, CO, 2003), IV(a). ECUSA will be used to refer to the Episcopal Church in the United States of America when discussing events preceding its name change to The Episcopal Church (TEC).

16 ACNS 3703, 9 December 2003.

17 ACNS 3773, 9 February 2004.

18 See T Urresti, ‘Canon law and theology: two different sciences’ in N Edelby, T Urresti and P Huizing (eds), Concilium: renewal and reform of canon law (New York, NY, 1967), pp 17–26.

19 <http://www.anglican-nig.org/primate's_pressbrief.htm>, accessed 2 December 2007.

20 P Huizing, ‘The reform of canon law’ in T Urresti and N Edelby (eds), Concilium: pastoral reform in church government (New York, NY, 1965), p 118.

21 Ibid, p 120.

22 Claiming our Anglican Identity, II(3).

23 Lambeth resolutions and the ecclesiastical law of other provinces do not technically constitute a canonical law that is in any way legally binding upon a province; however, they certainly take on a canonical form based upon moral authority, which, in the context of ecclesial communion, is a real authority. For further description, see N Doe, Canon Law in the Anglican Communion (Oxford, 1998), pp 339–340 and J Rees, ‘Primates Meeting, October 2003: some legal and constitutional considerations’, ss 2(1), 3(1), 3(3), available at <http://www.anglicancommunion.org/commission/process/lc_commission/docs/200310johnrees.pdf>, accessed 2 December 2007.

24 It should be noted that, while The Windsor Report seems to interpret the ‘listening process’ as a call to re-examine these canonical structures (paras 135, 146), the exclusive focus of the Lambeth resolutions detailing the ‘listening process’ (1978 res 10(3), 1988 res 64, 1998 res I.10(c)) has consistently been upon the ‘pastoral care’ and ‘moral direction’ of homosexual persons rather than a re-examination of ecclesiastical law or other statements concerning homosexuality as a theological question. Listening toward this end is requested in accordance with authoritative statements on homosexuality.

25 N Doe, ‘Canon law and communion’, (2002) 6 Ecc LJ 247: ‘in ECUSA … episcopal policy … allows ordination of practising homosexuals.’ While Stanton (Bishop of Dallas) v Righter (1996) may be appropriate precedent for Doe's statement, ECUSA (now TEC), Canon III(4)(1) says nothing about homosexual practice but rather orientation. It should also be noted that ‘episcopal policy’, as established in Stanton v Righter, stands in acknowledged disagreement with the recommendation of resolution 1979-A053 of the 66^th General Convention: ‘we believe it is not appropriate for this Church to ordain a practicing homosexual’. This act of repudiation is often unjustifiably overshadowed by focus upon the non-legal nature of General Convention recommendations. See the following section for a discussion of the limits of scriptural interpretation within ecclesial communion and the authority of non-legal ecclesial structures in setting these limits.

26 Claiming our Anglican Identity, II(6)–(7).

27 Doe, ‘Communion and autonomy in Anglicanism’, pp 8–9.

28 Constitution of the Church of Nigeria, Chapter 1(3). R Eames misinterprets the revision by failing to acknowledge its canonically multipartite and indeed catholic aspects (see n 11 above).

29 Doe, ‘Communion and autonomy in Anglicanism’, p 22: ‘If, as is the case for very many churches, the relationship of full communion is embodied in the law of the church, then it might be that alteration of that relationship must be effected by altering the law, in accordance with procedures necessary for amendment.’

30 ‘After the Robinson election, many provinces chose the only instrument of discipline available: declaration of impaired or broken Communion.’ (The Road to Lambeth, available at <http://www.globalsouthanglican.org/index.php/comments/the_road_to_lambeth_presented_at_capa/>, accessed 2 December 2007.)

31 ‘The importance of [LC 1998, res I.10] cannot be overstated. By using the phrase “contrary to Scripture,” the bishops indicated that homosexual practice violates the first principle of the Communion's Quadrilateral and indeed the fundamental basis of Anglican Christianity (as expressed in [the Thirty-nine Articles of Religion,] Articles VI and XX). They were saying: “Here is an issue on which we cannot compromise without losing our identity as a Christian body.”’(The Road to Lambeth.)

32 Ibid.

33 LC 1867, res 8: ‘[Provincial changes in faith and order are] liable to revision by any synod of the Anglican Communion in which the said province shall be represented.’

34 ‘A church becomes a member of the Anglican Communion when it displays loyalty to the instruments of faith, and a practical expression of membership is participation by a church in the work of the institutional instruments of the Anglican Communion.’ N Doe, ‘Canon law and communion’, p 245.

35 The Road to Lambeth.

36 For an extended discussion of the relationship between communion ecclesiology and the accountability of the episcopate to the faithful, see R Kaslyn, ‘Accountability of diocesan bishops: a significant aspect of ecclesial communion’, (2007) 67 The Jurist, pp 109–152.

37 LC 1930, res 49; LC 1998, res III.6(e). D Hamid notes that ‘[t]he right to speak on behalf of Anglicanism is not necessarily a charism inherent simply in being the incumbent of the See of Canterbury.’ (See D Hamid, ‘Church, communion of churches and the Anglican Communion’, (2002) 6 Ecc LJ 365.) While this is true, the See of Canterbury does hold a moral authority within the Anglican Communion.

38 ‘The apostle Paul never invoked law for his churches (indeed there was no canon law at that time), but he nevertheless exhorted them to be of one mind with him and to conform their lives to apostolic tradition (II Thessalonians 2.15)’: 15 November 2005, letter from the Global South Primates to Archbishop Rowan Williams, available at <http://www.globalsouthanglican.org/index.php/article/global_south_primates_response_to_archbishop_rowan_williams/>, accessed 2 December 2007. Reference to the apostleship of Paul as it relates to the moral authority of the episcopate, and particularly the See of Canterbury, is also made in Windsor Report, para 65.

39 See <http://www.cofe.anglican.org/news/pr5605.html>, accessed 2 December 2007.

40 See <http://www.parliament.the-stationery-office.co.uk/pa/ld200304/ldbills/053/2004053.htm>, accessed 2 December 2007.

41 ACNS 4017, 8 August 2005. The role of the Archbishop of Canterbury as the focus of Anglican unity is not mentioned in this letter, although he is singled out elsewhere, as in the above reference to The Road to Lambeth.

42 Hamid, ‘Church, communion of churches and the Anglican Communion’, p 363: ‘[the Archbishop of Canterbury] has a primacy within England itself and by extension throughout the Anglican Communion’.

43 That is, the historic episcopate. See J Britton, ‘The evangelicity of the episcopate’, (2003) 85 Anglican Theological Review 610.

44 Constitution of the Church of Nigeria, Chapter 1(3).

45 Called to Common Mission, para 12; the text is available at <http://www.elca.org/ecumenical/fullcommunion/episcopal/ccmresources/text.html>, accessed 17 January 2008.

46 Britton, ‘The evangelicity of the episcopate’, p 616.

47 R Kaslyn, ‘Communio with the Church’ and the Code of Canon Law (Lewiston, NY, 1994), pp 13–22. The centrality of communion ecclesiology to post-conciliar thought may be more accurately traced to the Extraordinary Synod of 1985, which synthesised the message of Lumen Gentium in terms of ‘communion’. However, the publication of the International Catholic Review demonstrates that the concept of communio was present earlier.

48 E Corecco, ‘Ecclesiological bases of the code’ in J Provost and K Wulf (eds), Concilium: canon law–church reality (Edinburgh, 1986), pp 3–13.

49 While the concilium and communio groups represent two more robust post-conciliar ecclesiologies, their differences should not be seen as insurmountable. For a description of communio with brief reference to concilium, see J Ratzinger, ‘Communio: a project’, (1992) 19 Communio: International Catholic Review, pp 436–449.

50 See LC 1930, res 48 and Doe, ‘Communion and autonomy in Anglicanism’.

51 Corecco, ‘Ecclesiological bases of the code’, p 7, emphasis in original. See also Lumen Gentium 3(23): ‘in and from these particular churches there exists the one unique catholic church’, in N Tanner (ed), Decrees of the Ecumenical Councils (Washington, DC, 1990), p 867. The passage from Lumen Gentium is noted in Kaslyn, ‘Communio with the Church’, p 23.

52 Kaslyn, ‘Communio with the Church’, p 23.

53 J Renken, ‘“Duc in Altum!” Communio: source and summit of church law’, (2003) 63 The Jurist 55.

54 See Doe, ‘Canon law and communion’, pp 243–246.

55 The Virginia Report (London, 1997), Chapter 3(28), available at <http://www.lambethconference.org/1998/documents/report-1.pdf>, accessed 17 January 2008.

56 Doe, ‘Canon law and communion’, p 246.

57 Windsor Report, para 113. See also N Doe, ‘The common law of the Anglican Communion’, (2005) 7 Ecc LJ pp 4–16, reproduced in (2005) 5 International Journal for the Study of the Christian Church, pp 242–255 and N Doe, ‘The contribution of common principles of canon law to ecclesial communion in Anglicanism’, (2008) 10 Ecc LJ, pp 71–91.

58 Windsor Report, paras 118–120. See also ‘An Anglican covenant: a draft for discussion’, available at <http://www.anglicancommunion.org/commission/covenant/report/draft_text.cfm>, accessed 2 December 2007.

59 See N Doe, ‘Ecclesiastical quasi-legislation’ in N Doe, M Hill and R Ombres (eds), English Canon Law (Cardiff, 1998), pp 93–103 and Doe, Canon Law in the Anglican Communion, pp 339–340.

60 The distinction between ‘covenantal’ and ‘contractual’ relations helpfully parallels the ‘moral’ and ‘juridical’ order of Anglican communion. ‘Covenantal systems rest on the creation of a compliance structure such that reflection by the participants will produce the conclusion that noncompliance to expectations constitutes a breakdown in their own moral essences.’ (D Bromley and B Busching, ‘Understanding the structure of contractual and covenantal social relations: implications for the sociology of religion’, (1988) 49 Sociological Analysis 22S.)

61 Claiming our Anglican Identity, II(2). See also Windsor Report, para 86.

62 Disciplinary protocol is much more established within Anglican provinces than on a global scale; nonetheless, something like ‘admonition’ or ‘rebuke’ may be found in Windsor Report, para 144. For descriptions of these terms, see Doe, Canon Law in the Anglican Communion, pp 88–89. The Archbishop of Canterbury may also exercise a sort of discipline through his responsibility to invite provincial representatives to global Anglican meetings and to recognise provinces as ‘in communion’. Archbishop Rowan Williams' apparent decision not to invite Bishops Martyn Minns, Robinson Cavalcanti, Chuck Murphy, John Rodgers, Alexander Green, Thaddeus Barnum, TJ Johnson, Douglas Weiss and Gene Robinson to the 2008 Lambeth Conference may or may not be interpreted as an exercise of this disciplinary authority.

63 ‘I accept that any individual diocese or even province that officially overturns or repudiates this resolution poses a substantial problem for the sacramental unity of the Communion.’ Archbishop Rowan Williams, Letter to the Primates, 23 July 2002, quoted from Windsor Report, para 25, n 9.

64 The Anglican Communion Primates' Meeting Communiqué, February 2005, para 13. ACNS 3948, 24 February 2005.

65 Doe, Canon Law in the Anglican Communion, p 339: ‘There is no formal Anglican canon law globally applicable to and binding upon member churches of the Communion. No central institution exists with competence to create such a body of law.’

66 Constitution of the Church of Nigeria, Chapter 1(3)(2).

67 Press briefing by Archbishop Akinola, 29 September 2005: ‘Our earnest desire is to see the fabric of our beloved Anglican Communion restored and our bonds of affection renewed through our common commitment to God's Word written as expressed in Article XX of our common Articles of Religion.’ Available at <http://www.anglican-nig.org/primate's_pressbrief.htm>, accessed 2 December 2007.

68 Doe, Canon Law in the Anglican Communion, pp 354–355.

69 See R Ombres, ‘Ecclesiology, ecumenism and canon law’ in Doe, Hill and Ombres (eds), English Canon Law, pp 48–59.

70 IASCER 2003 res 1.03. The terms of the Russian Orthodox Church's declaration are quoted as ‘wanting to maintain contacts and co-operation with the members of the Episcopal Church in the USA who clearly declared their loyalty to the moral teaching of the Holy Gospel and the Ancient Undivided Church’. This provision has also been clearly laid out by various provinces of the Anglican Communion who have otherwise declared impaired communion with TEC.

71 Ecclesiological Reflections on the Current Situation in the Anglican Communion in the light of ARCIC (ERCSAC), para 35, emphasis added, available at <http://www.aco.org/ministry/ecumenical/dialogues/catholic/iarccum/docs/pdf/iarccum2004.pdf>, accessed 17 January 2008.

72 ERCSAC, paras 25, 38 and 41.

73 ERCSAC, para 48.

74 See <http://www.vatican.va/roman_curia/pontifical_councils/chrstuni/card-kasper-docs/rc_pc_chrstuni_doc_20041217_kasper-arch-canterbury_en.html>, accessed 2 December 2007.

75 ‘The text stands in line with our ARCIC documents, though there are other elements of ARCIC's work which we believe deserve further attention.’ (Ibid.)

76 See Ombres, ‘Ecclesiology, ecumenism and canon law’, pp 48–59.

77 LC 1998 res IV.11.

78 The Church of Nigeria is involved in reconciliation with these groups as well, through its controversial oversight of the Convocation of Anglicans in North America (CANA). While discussion of this involvement is important, the issue of actual primatial oversight is beyond the scope of this paper, as it requires consideration of the revisions to chapters 9 and 16 of the Constitution of the Church of Nigeria.

79 A bewildering array of communions, usually with established constitutions, makes it difficult to give exhaustive citation of this claim. Continuing Anglican churches are, however, generally characterised by a stated commitment to the Lambeth Quadrilateral and to the apostolic episcopate. For further information, see <http://www.anglicansonline.org/communion/nic.html>, accessed 2 December 2007.

80 General Convention Resolutions 2003-B006, 2000-D047.

81 Action on Resolutions Referred by the 74^th General Convention, 2003-B006, available at <http://episcopalarchives.org/e-archives/bluebook/15.html>, accessed 2 December 2007.

82 17 November 2005, letter from the Rev R Sutton, Chairman of the Interchurch Relations Committee, REC, available at <http://www.anglicanprovince.org/suttonletter.html>, accessed 2 December 2007.

83 One example is the Articles of Ecclesiastical Fellowship of the Bartonville Agreement of 1999. Constituent members of the agreement were: ‘the American Anglican Church, the Anglican Church in America (with its sister Churches and Provinces in the Traditional Anglican Communion), the Anglican Province of America, the Anglican Rite Synod in the Americas, the Episcopal Missionary Church, and The Orthodox Anglican Church.’ (See <http://anglicanprovince.org/ccef.html>, accessed 20 May 2007.)