Common Prayer and Common Law

A Distinctively Anglican Connection

An important subject that has been insufficiently explored in most accounts of Anglican self-understanding and theology is its relation to the English common-law tradition.  

In the background here is what some historians (from Pocock onwards) have called an early-modern “common-law mind.” This viewed English law as the ancient, essentially immemorial custom of the English realm, expressed and refined through the decisions of the king’s courts in an essentially pragmatic manner – in sharp contrast to civil-law systems grounded in a comprehensive code. To put this more specifically, English common law is case-based and inductive with general principles inferred from a long line of particular decisions. 

In this approach, legal doctrine grows upward out of cases rather than being imposed a priori from above. This entails that incremental change is effected by distinguishing, limiting, or carefully extending precedents rather than by wholesale repeal (and certainly not by judicial innovation). Judges decide no more than the individual case requires, an approach that invites judicial humility rather than activism – to use a modern term. 

There is also an implicit sense in which law is understood to be given, rising from legitimacy and authority in its antiquity (hence there is a certain deference to “the ancient constitution”). This is grounded in something more than simply the sovereign’s will, with a consequent tendency to have new statutes interpreted as continuations or recoveries of ancient right.

Important here too is that law is conceived as plural and cumulatively layered, since it consists of statutes, precedents, customs, and maxims, all of which are seen as coexisting and as needing to be understood in mutual relation and harmonised, but not as reduceable to a single codified whole. In this conception, law is known not primarily by systematic codification, but by learning how the tradition has in fact been adjudicated over time in application to particular hard cases that had to be resolved. 

There is also to be considered here, what may be called the legal-constitutional matrix from which Anglicanism emerged at the Reformation, as the new and defining expression of the Church in England. It is important to note that the Church of England was not simply theologically recast, it was juridically re-founded. The Henrician and Elizabethan Reformations were enacted through legal statutes and instruments – the Acts of Supremacy and Uniformity, royal injunctions, and the legal imposition of the Book of Common Prayer and Articles. All these collectively reconfigured the relation between royal, parliamentary, and ecclesiastical jurisdiction. Several aspects were important here. 

Medieval English ecclesiastical courts had operated under canon law, heavily indebted to the Roman-canon ius commune, if always in a somewhat uneasy relation to the king’s courts. After the break with Rome, the jurisdiction of the ecclesiastical courts and the sources of law applied therein were increasingly defined by statute and the royal supremacy.  Ecclesiastical law ceased to be the English application of a transnational corpus iuris canonici; it thus became the public law of an established national church, bound by the common-law understanding of the realm’s constitution.

Henrician and Elizabethan jurists also argued that the English crown was “imperial” within its realm, and that there was no superior jurisdiction from Rome. This is defended not just by appeal to Scripture, but by invoking what was conceived of as the ancient constitution – the idea that England had always, in principle, possessed an undivided jurisdictional sovereignty. This meant that the break with Rome was framed as a recovery of immemorial English law and not as an innovation. 

All this juridical background provided an important framing for Anglican divines thinking about the Church’s autonomy and authority while it also had large consequences for the formal status of such things as the Prayer Book. 

The 1559 Prayer Book and the 1571 Articles functioned thus simultaneously as, not only liturgical and doctrinal norms, but as legal instruments of uniformity enforced by ecclesiastical and, in some respects, temporal courts. Anglican theology was therefore from the outset articulated in forms whose normative force had juridical as well as theological dimensions. 

This hinterland invited the kind of hermeneutics familiar from the practice and development of the Common Law, with close attention to text, intention, and precedent. This did not of itself entail specific doctrinal content, but it did have impact in orienting Anglican thought about sources, authority, continuity, change, and the interpretation of norms.

Richard Hooker stands as a key figure in this terrain, at the intersection of scholastic natural-law theology and English common-law constitutionalism. Hooker’s Laws of Ecclesiastical Polity (1590s) set out, with much sophistication, both a defence of the Elizabethan religious settlement and a theological exposition on law and reason, which also reflected and absorbed in important ways the distinctive methodology of the English Common Law.

Hooker famously defined law as “a directive rule unto goodness of operation,” and elaborated a hierarchy of eternal, natural, divine, and human with clear debts to Aquinas, Augustine, and the medieval lex divinitatis. Nonetheless, as Torrance Kirby and others have shown, Hooker’s account is original in important respects and was intended very specifically to support the Elizabethan constitutional and ecclesiastical order that was foundational for the Anglican tradition. As Kirby puts it, Hooker’s metaphysical claim that “God is Law” was able to serve as the foundation for a very concrete defence of the Elizabethan “stately house” of Church and commonwealth.

Hooker sharply distinguished divine law (in the sense of supernatural revelation ordered to salvation) from human positive law, which operates under natural law in matters where Scripture is silent or not determinative. In these “things indifferent” (adiaphora), the Church may legislate prudentially, within the bounds of natural and divine law. This allowed a reasoned escape from the narrowly biblicist patterns prevailing among his Puritan opponents. 

Arguably there are elements in Hooker’s argumentative method that reflect the wider common-law culture characteristic in England. He proceeds by patient engagement with the positions of his adversaries, distinguishing their claims, granting what can be granted, and narrowing the ratio decidendi, rather than imposing a grand overarching and abstract system. And it has been said, of Books II–V of the Laws, that they read like extended judgments, in which he tests the Puritan case against Scripture, patristic precedent, and reason as well as the inherited tradition of the Church.

And in this latter regard he accords a high place to custom and historical practice. As befits this strand of pragmatism, Hooker held that Scripture does not prescribe one single immutable form of church polity, but presupposes that human positive law and natural reason will order many aspects of ecclesial life diversely in different commonwealths. This is akin to the common-law recognition that many particulars are determined by prudence under general principles rather than by universal codification. In the words of one commentator Hooker’s apology “both reflected the influence of the common law tradition and in turn influenced that tradition.”

All of this has arguably further significance for the way in which Anglicans have engaged on moral questions. From the sixteenth century onward, Anglicans have typically treated moral reasoning as both ecclesial and pastoral, drawing once again in a very characteristic Anglican way on multiple authorities (Scripture, patristic and scholastic sources together with the Prayer Book tradition and our Anglican formularies), rather than working down from a prior comprehensive and specific moral code. 

Two contrasting examples would merit a much more extensive presentation than is appropriate here, but should be at least cited for reference: namely Kenneth Kirk and Oliver O’Donovan. Both are distinctively Anglican and insist that ethics is properly theological – concerned with God’s action and the Church’s life – but they work with strikingly different starting-points, genres, and methods. 

Bishop Kirk revived moral theology as an ascetical and inductive virtue-framed casuistry oriented to the vision of God, while O’Donovan constructed a systematic, dogmatic ethics ordered by the resurrection and the created moral order.

In Some Principles of Moral Theology and Their Application (first published 1920), followed by The Vision of God and Conscience and Its Problems, Kirk effectively re-established moral theology as a distinct field in Anglican theology. With two aspects being perhaps especially characteristic: 

1. Kirk insists that moral theology must be joined to ascetical or mystical theology; ethics concerns not only avoiding sin, but the formation of character ordered to the vision of God, a perspective that set him apart from contemporary Catholic “manualists,” whose legal-juridical approach he critiqued.
2. And secondly in opposition to a purely deductive casuistry that moved from universal norms to particular cases, Kirk sought to develop an inductive casuistry that works from concrete pastoral situations and seeks to form mature, virtuous disciples capable of wise judgment. His ethic is “historicist, biblical, charity-centered, and casuistic,” and thus exemplifies the Anglican way of holding together case-based moral guidance, the cultivation of virtue, and a contemplative orientation to God in pursuit and application of the moral life.

Professor Oliver O’Donovan, was another Oxonian who served for many years as Regius Professor of Moral and Pastoral Theology at Oxford, and is probably the most influential Anglican moral theologian of recent decades. His early work Resurrection and Moral Order (1986) argued that Christian ethics must be shaped by the resurrection of Christ as the authoritative confirmation and transformation of the created moral order. 

Once again, the concept of law plays a key role as we find a determination to retrieve a sense of natural law (understood as the good order of creation), but now explicitly understood as christological and eschatological: where the Resurrection is seen as confirming creation and directing it to its fulfilment. To which is added a strong emphasis on moral judgment as the task of discerning what is fitting in light of God’s acts, (rejecting both purely deontological and purely consequentialist approaches). In addition, O’Donovan developed a political theology (in The Desire of the Nations) that locates Christian ethics within the history of Christ’s rule over the nations, while his later three-volume Ethics as Theology frames ethics as practical reflection on self, world, and time in the light of God’s love (though to say this compresses matters rather severely). 

O’Donovan is distinctively Anglican – and in modern terms evangelical – in his scriptural and christological focus, while also catholic in his sacramental and natural-law approach, remaining all the while skilful in his engagement with the multifold sources of the Anglican theological and moral tradition. I hope to have occasion a more detailed revisit of these authors in future.