Obedience to Doctrine in Canon Law:
The Legal Duty of Intellectual Assent

Norman Doe *

Interest in canon and ecclesiastical law has grown in recent years not least
through the establishment in the Church of England of the Ecclesiastical Law
Society (and its journal) in 1987. This has been, in part, a response to the need to
promote the study of an aspect of church life that has undergone substantial
development in the last thirty years. The period had seen the revision of the
Church of England's canons (in the 1960's), an increase in decisions of the
ecclesiastical courts in the exercise of their faculty jurisdiction, and the very large
body of legislation created by the General Synod since its reform in 1969 in so
many areas, synodical government, clerical discipline, relations with other
churches, the care of cathedrals, legal aid for ecclesiastical litigation and the
continuing debate over the ordination of women. This period has also seen the
re-structuring of many of the constitutions of national churches in the Anglican
Communion and, very significantly, the revision in 1983 of the Code of Canon
Law of the Roman Catholic Church and the revision in 1991of the Code of Canons
of the Eastern (Catholic) Churches.

The study of canon law has been neglected in British universities since it was
banned at the Reformation in the sixteenth century. Though there is a compulsory
study for those training for the Roman Catholic priesthood, Anglican ordinands in
England and Wales receive no formal, comprehensive and systematic training in
canon law, nor do practitioners of church law, such as diocesan chancellors,
diocesan registrars, and archdeacons. Standing as it does at the intersection oflaw
and theology, as an object of scholarship canon law commends itself thoroughly.
The central areas of concern in canon law, the law created by churches for
themselves, the law created by the state for the church (sometimes known as the
public ecclesiastical law) and - according to some definitions - the law created by
God for the church, might be viewed and analysed from so many perspectives.
Indeed, one of the achievements of the Ecclesiastical Law Journal, of the Church of
England, in recent years has been the analysis of church law from the perspectives

* Course Director of the LL.M. in Canon Law, Cardiff Law School, University of Wales. I should like
to express my gratitude to Miss Michelle Gooden, a summer research assistant at the Cardiff Law
School, for her kind help in identifying many of the materials which form the basis of the discussion in
this paper and for her help in clarifying some of the central ideas examined.

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of theology, past canonical practices, its ecumenical comparisons with other
systems of canon law, comparisons with the civil law, and with the central
Christian theological doctrines.! The scope of canon law is wide-ranging.
Essentially, however, in addition to the host of jurisprudential questions that
might be asked of canon law (its basic authority, its justification and purposes), the
main principles and rules of canon and ecclesiastical law may be categorised as
dealing with constitutional church government, the powers and limitations on
ecclesiastical institutions, with rights and duties of ecclesiastical persons, with the
legality ofliturgical practices and the creation and regulation of forms of worship,
with the regulation by law of the sacraments and other church services,
particularly of admission to and exclusion from these, with the rules governing
church property and with the relation between church and civillaw.2

The area of concern in this short paper is that of doctrine and the teaching
authority of the church. This is, in itself, a very large subject and has since Vatican
II seen in the Roman Catholic Church a significant shift in canon law from the idea
that the right to formulate and present church doctrine for public view is one
vested in the ecclesiastical hierarchy (in the pastors of the church), to one in which
all the faithful, lay and clerical, possess a magisterial function.3 One particular area
of the law relating to doctrine is that of the authority which canon law ascribes to
different forms of doctrine as produced by the various ecclesiastical institutions -
whether doctrines produced by institutions in the church are of sufficient
authority to impose on the church member the duty of intellectual obedience to
them, and the obligation not to dissent, either privately or publicly.

The issue has acquired considerable topical interest in recent years in the
Church of England over the public statements of the Bishop of Durham in 1988
and his so-called 'trial-by-synod', when the General Synod was called on but
refused to condemn views which were considered by many to have challenged the
Church of England's teaching on the Resurrection and the Virgin Birth. In the
Roman Catholic Church, the issue has come to the fore over the church's
treatment in recent years of the celebrated theologians Hans Kung, Edward
Schillebeeckx, and Johannes Baptist Metz. The Belgian Edward Schillebeeckx, a
professor of theology at the Catholic University of Nijmegen in Holland,

1. N. Doe, "Toward a critique of the role of theology in English ecclesiastical and canon law", 2
Ecclesiastical Law Journal (1992), pp. 328-346.
2. For definitions of canon and ecclesiastical law, and its scope and object, see N. Doe (ed.), Essays in
Canon Law: A Study of the Law of the Church of Wales (University of Wales Press, Cardiff, 1992), pp.
69-74. For a definition by the Church of England canonist Garth Moore, see B. Hanson and T. Briden
(eds.), Moore's Introduction to English Canon Law 3rd edition (1992), pp. 1-9; for a Roman Catholic
definition, see G. May "Ecc1esiasticallaw", K. Rahner (ed.), Encyclopedia of Theology (1981), p. 395,
and P. Huizing, "Church and state in public ecclesiastical law", Conciliurn 8(6) (1970),126 at p. 129.
3. J. A. Coriden, T. J. Green, and D. E. Heintschel, The Code of Canon Law: A Text and Cornrnent<lry
(1985) 345f. See also, generally, J. A. Coriden, Introduction to Canon Law (1991), pp. 103-111, and H.
Fries, "Is there a rnagisteriurn of the faithful?", Conciliurn (1981) 177.

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published in 1974a book, Jesus: An Experiment in Chriscology, in which he argued
that though Jesus' existence was 'wholly the work of God's spirit' the virgin birth
was simply a story devised after the event to express that truth through the
imagery of a prophesy found in Isaiah (7:14). Schillebeeckx also wrote of the
disciples' faith as being derived from their experience of the grace of forgiveness,
not from a 'crude and naive realism' of a physical resurrection. After a five-year
investigation he was summoned to and exonerated by a 'colloquium' of the
Vatican's Congregation for the Doctrine of the Faith in 1979.4 At the same time,
the Swiss-born Hans Kung's Infallible? An Inquiry, published in 1970, resulted in
a judgment of the Vatican that he was no longer to be approved as a theologian
allowed to teach at the Catholic theology faculty at the University of Tubingen.5
Again, in 1979 Father Johannes Baptist Metz, the liberation theologian, was
offered a chair at Munich but the Archbishop of Munich, Cardinal Ratzinger,
exercised his power of veto under a 1924 church-state concordat to block the
appointment. The problem has also become important bearing in mind the Roman
Catholic Church's efforts to incorporate Vatican II's declarations on the place of
human rights in the church and the 1983 Code's recognition and protection of
these, including that of freedom of thought and expression, as flowing from the
dignity of the human person as well as from incorporation into the church through
baptism.6

Our basic problem is the extent to which canon law confers upon exercises of
teaching authority, in the Roman Catholic Church and in the Church of England,
the power to require intellectual assent, and therefore compliance in the form of
conduct, with doctrinal statements formulated by those churches. Related to this,
of course, is the question of the canonical right to dissent from authoritative
doctrines and the way in which this right is expressed and protected. There may be
two basic forms of dissent: a private intellectual withholding of assent; and a public
withholding of assent expressed in a positive challenging of or attack upon the
doctrine of the church. We shall examine here, in outline, the legal position of
assent to and dissent from ecclesiastical doctrines under the canonical systems of
the Roman Catholic Church and the Church of England.

I. Roman Catholic Canon Law: assent and dissent
Though Roman Catholic canon law confers upon all the faithful, lay and cleric, the

4. See generally F. A. Sullivan, Magisterium: Teaching Aurhoriry in rhe Carholic Church (Dublin, 1983),
p.217.
5. For a general survey see H. Haring and K-J. Kuschel (eds.), Hans Kiing: His Work and His Way
(Glasgow, 1979), pp. 79-101.
6. C. Lara, "Some general reflections on the rights and duties of the Christian faithful", Srudia
Canonica 20(I) (1986) 7; D. J. Ward, "The rights of Christians within the code of canon law", in J. Hite
and D. J. Ward (eds.), Readings, Cases, Marerials in Canon Law (Collegeville, Minnesota, 1990),p. 179,
andJ. Langan, "Can there be a human rights problem in the Church?", 46 TheJurisr (1986), p. 1. For
the position before the 1983 code, see, e.g., P. Lombardia, "The fundamental rights of the faithful",
Concilium, 8(5) (1969) 42.

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right to present the Christian doctrine for public view,7 it confers power to
formulate doctrine only upon the magisterium, the clerical teaching authorities of
the church. By Canon 749 of the 1983 Code canon law recognises, as a divine
institution, the right of the pope unilaterally, and the college of bishops
collectively (when gathered together in an ecumenical council, or whilst dispersed
throughout the world), the power to formulate infallible or definitive doctrine.
When the pope or college of bishops create definitive doctrine in matters offaith
and morals, they do so under an exercise of supreme magisterial authority: this is
an exercise of the universal extraordinary magisterium. By Canon 750 the pope or
the college of bishops might formulate definitive doctrine when they declare that a
doctrine (as one contained in or derived from the 'deposit of faith') has been
divinely revealed. Canon 752 allows for the creation of a lesser species of
authoritative doctrine in matters of faith and morals, non-definitive doctrine,
formulated by the pope or college of bishops exercising their ordinary universal
magisterium. And Canon 753 allows the bishops, who individually do not possess
infallible teaching authority, to create non-definitive doctrine in matters of faith.
By canon law, then, these different species of doctrine enjoy different types of
authoritative status in the Roman Catholic Church. One fundamental question is
the response each of these forms of doctrine requires from those to whom they are
addressed, in particular the members of the church.

1. Definitive doctrines
In relation to definitive doctrines, when the magisterium formulates a doctrine
infallibly, by canon law this gives rise to an apparently absolute duty of assent, an
assent of faith. Infallible doctrines are themselves irreformable and possess
supreme authority. In relation to doctrines formulated under Canon 750 the
doctrine is authoritative because it represents simply a declaration of a truth
entrusted to the church by Christ or the apostles. Such doctrines "must be
believed with divine and catholic faith". As Francis Sullivan puts it: "the motive
of the act of faith is not the reliability of the human messenger, but the truth of the
word itself as word of God."8 According to Canon 749 infallible doctrines must be
"held definitively". According to the documents of Vatican II, when the
magisterium defines a doctrine, it must "be adhered to with the submission of
faith".9 The infallible doctrine of the bishops dispersed "must be held
conclusively" .

There is on the face of it no right of intellectual dissent. Once it has been

7. See Coriden, Green and Heintschel, Commentary, Canons 211, 225, 226, 747, 781. According to
Canon 211: "All the Christian faithful have the duty and the right to work so that the divine message of
salvation may increasingly reach the whole of humankind in every age and in every land."
8. F. A. Sullivan, "Magisterium", in J. A. Komonchak, M. Collins, and D. A. Lane (eds.), The New
Dicrionary of Theology (1987), p. 617.
9. A. Flannery (ed.), Varican Councr'll!: The Conciliar and Posrconciliar Documents, Vol. I (New York,
1988), p. 379 (for the dogmatic constitution Lumen Gentium (1964) 25).

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OBEDIENCE TO DOCTRINE IN CANON LAW

declared as definitive, the doctrine requires an assent of faith: it must be held as
definitive and true by the faithful member. When the magisterium gives a
definitive judgment on a matter of faith this "puts an end to freedom of opinion on
the matter" - it becomes "the normative faith of the community". 1 0 Thus, for
example (and this was an issue in the debate over Hans Kung), members of the
Roman Catholic Church are under a legal duty to give an assent intellectually to
the idea that when a pope pronounces a definitive judgment he is gifted by the
Holy Spirit with that infallibility which Christ endowed the church in defining
matters of faith and morals. This doctrine itself was declared infallibly by Vatican
I: it is an irreversible doctrine, and canon law requires an irreversible assent to it
from the faithfu1.ll

Here the only possible right of dissent is based on technical, and largely
theoretical, challenges to the exercise of the infallible magisterium as being
canonically ultra vires. For example, if the doctrine is to be treated and obeyed as
infallible, the magisterial authorities under Canon 749 must declare it as such. If it
is not declared as definitive it may not give rise to an absolute assent of faith. If the
subject-matter of the doctrine is not one concerning faith and morals, then the
doctrine may not give rise to an absolute assent. If the magisterial authority was
coerced, or was not elected lawfully, or ordained unlawfully, then similarly the
duty of assent may not arise as, canonically, this will not properly speaking be an
infallible exercise of the magisterium.

2. Non-definitive doctrines
When a doctrine is non-definitive, formulated by the church's ordinary
magisterium, under the 1983 Code it too possesses an authority and it has an
obligatory nature. The declaration Lumen Gentium (1985) of Vatican II, itself a
non-definitive doctrine (because the council chose not to create definitive
doctrine), stresses that non-definitive doctrines impose the obligation of "respect
and submission of the will and mind" and the duty "to adhere sincerely" to them.
A papal encyclical is a typical medium for the expression of non-definitive
doctrine. No pope has claimed to teach infallibly in an encyclica1.12 When, for
example, Paul VI's encyclical Humanae Vitae (1986) reiterates the ban on
contraception, this piece of doctrine, via the duties imposed by canon law, requires
not only some form of intellectual assent (about the rightness of the papal moral
teaching), but also an external response, a form of conduct on the part of the
faithfu1. This piece of ecclesiastical doctrine therefore has a quasi-legal nature: in

10. F. A. Sullivan, Magisterium, pp. 79-118.
11. K. Rahner, "Magisterium", in K. Rahner (ed.), Encyclopedia of Theology (1981), p. 871. See
generally, T. Horvath, " A structural understanding ofthe magisterium of the church", Science et Esprit,
29(3) (1977) 283, and W. M. Thompson, "Authority and magisterium in recent Catholic thought",
Chicago Studies (1977) p. 278.
12. F. A. Sullivan, Magisterium, p. 155.

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conjunction with the canon law, which requires some form of obedience to the
doctrine, the doctrine is to be treated as if it were law.13

Roman canonists are not in agreement, however, about the precise obligation
canon law places on the faithful with regard to non-definitive doctrine. The crucial
word in the canons is obsequium. Canon 752 has been translated by the Canon Law
Society of America as imposing a "religious respect of intellect and will, even if not
the assent of faith" on the faithful towards non-definitive doctrine created by the
pope or the college of bishops. Again, Canon 753 is translated as imposing an
obligation of "religious respect" to the non-definitive doctrines of individual
bishops or conferences of bishops in matters of faith. If the obligation, if
obsequium, is interpreted in this way, then there seems to be scope, arguably, for
the right of dissent to operate in relation to non-definitive doctrines of the
magisterium. When the encyclical on contraception imposes rules of conduct as
well as a mental acceptance of the moral propriety of the teaching in it, there is,
then, on this translation, no absolute duty of obedience. Indeed, this is the
understanding of B. C. Butler: 'due respect' only is owed to such teaching, an
interpretation also favoured by the Italian translators of the expression (ossequio);
the Italian edition of Lumen Gentium actually translates obsequium as rispeuo.14

However, other translations of the term suggest that the duty under Canon 752
is stronger. It imposes an obligation of obedience, not simply respect. The term
'submission' is used by the Canon Law Society of Great Britain and Ireland in its
translation of obsequium, the French translation uses soumission, and the German
Gehorsam. Indeed, this understanding is close to the view of Pius XII in his 1950
encyclical Humani Generis. As to the question at issue in the encyclical, the pope
stated that it "can no longer be considered a subject for free debate." This too is
the view of Francis Sullivan who points to the principle appearing in Lumen
Gentium that the faithful must "sincerely adhere" (adhaerere) to such doctrines. IS
In short, it is unclear from the text of the Code itself whether the duty imposed on
the faithful is merely to respect such doctrines or to submit the will and mind to
them in obedience.

The question remains, therefore, whether a member of the faithful might
dissent intellectually and in conduct from such doctrines. After all, as non-
definitive doctrine is just that, reformable, open to error and not an exercise of
solemn infallible teaching authority, or it is not the intention of the doctrine-maker
for the doctrine to be binding, it is arguable that the individual is free to dissent.

13. Sullivan is ofthe view, however, that (a doctrinal document such as) 'Humanae Vitae is not Church
law', because law does not require an intellectual response, an acceptance of its moral worth: ibid., p.
162. For the connection between doctrine and canon law in Roman Catholic thought, see T. Urresti,
"Canon law and theology: two different sciences", Concilium, 8(3) (1967) 10.
14. B. C. Butler, "Infallible; authenticum; assensus; obesquium. Christian teaching authority and the
Christian's response", Doctrine and LIfe, 31 (1981) 77. See also the first class survey by F. A. Sullivan.
"The response due to the non-definitive exercise of magisterium", Studia Canonica, 23 (1989) 267, at p.
268.
IS. F. A. Sullivan, Magisterium, pp. 158-166.

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OBEDIENCE TO DOCTRINE IN CANON LAW

The matter is made a little clearer, that the obligation imposed by Canon 752
allows scope for internal dissent, by some official statements and the opinions of
some 'approved authors' . The view of the Sacred Congregation for the Doctrine of
the Faith from 1988 (whilst investigating the American Father Charles Curran's
attack on the encyclical Humanae Vitae on birth control) was that a person may
have a right to private dissent from such doctrines if there is a "personal certitude
that the teaching of the Church is incorrect."16 Similarly, in the opinion of the
approved authors Palmieri (writing in 1891), Pesch (writing in 1924) and Lercher
(writing in 1951), there was a possibility oflegitimate non-assent to authoritative
but non-infallible papal teaching if the individual had "reasons that are persuasive
(even if inculpably erroneous)"; a person could dissent if there were "sufficient
reasons for doubting", or ifhe had "grave suspicion that the presumption of truth
which official teaching enjoys is not verified in this case."17 Though this is not
stated in the code itself, and in a legal system that does not employ a doctrine of
binding judicial precedent, it must be remembered that in interpreting the code
recourse might be had, under Canon 19, to "the common and constant opinion of
learned writers".

3. The explicit right of dissent
We have so far attempted to construct a right to dissent by concentrating on the
elements of the duty of assent, and the uncertainties surrounding the meaning of
obsequium. The right to dissent privately and publicly from the church's
authoritative doctrines may be found, however, in the code's lists offundamental
rights enjoyed by all the faithful- rights which may be vindicated judicially in the
ecclesiastical courts of the Roman Catholic Church. And here we meet a basic
tension in Roman Catholic canon law, for, under Canon 754, "All the Christian
faithful are obliged to observe the constitutions and decrees which the legitimate
authority of the Church issues in order to propose doctrine and proscribe
erroneous opinions."

First, freedom of intellectual dissent from doctrine is conferred by Canon 748:
"Persons cannot ever be forced by anyone to embrace the Catholic faith against
their conscience." This canon does not apply to the expression of opinions
contrary to the teaching ofthe church. It relates only to the mind of the individual.
The commentaries on this canon are not very satisfactory. The canon is taken from
Vatican II's Declaration on Religious Liberty, Digniracis Humanae (1965). This
states that the right to religious freedom is based on the "very dignity of the human
person": it is a human right which canon law merely presents. Though "endowed
with reason and free will", individuals are bound by a "moral obligation" to seek
the truth and "to adhere to the truth once they come to know it and direct their

16. C. E. Curran, Faithful Dissent (Kansas City, 1986), pp. 201-202.
17. For a discussion ofD. Palmieri's Tractatus de Romano Ponti/ice cum prolegomeno de Ecclesia (1891),
C. Pesch'sPraelectiones dogmaticae (1924), and L. Lercher's Institutiones theologicae dogmaticae in usum
scholarum (1951), see Sullivan's article in Scudia Canonica 23 (1989) 267, at pp. 276-78.

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lives in accordance with the demands of truth." But individuals cannot be forced
to this. "For this reason the right to this immunity continues to exist even in those
who do not live up to their obligation of seeking the truth and adhering to it." The
declaration states that "It is through his conscience that man sees and recognises
the demands of the divine law. He is bound to follow his conscience faithfully in all
his activity so that he may come to God ... Therefore he must not be forced to act
contrary to his conscience ... especially in religious matters. The reason is
because the practice of religion of its very nature consists primarily of those
voluntary and free internal acts by which a man directs himselfto God." 18 Though
expressed in absolute terms in relation to definitive doctrine, it appears that,
ultimately, even the canonical duty to assent to this is unenforceable.

Secondly, there is the right to express publicly opinions contrary to church
doctrine. By Canon 212(3), the faithful have "the right and even at times the duty
to manifest to the sacred pastors their opinion on matters which pertain to the good
of the Church." The canon also provides that the faithful "have a right to make
their opinion known to the other Christian faithful." As James Provost suggests,
however, this explicit right to express opinion is not unfettered. 19 It is a right to
which several duties are attached, first and foremost the limitation relating to
subject-matter. The individual may express an opinion only regarding the good of
the church - but the code does not explain this. Provost is of the view, though, that
such opinions "could be favourable or criticaL"

This right, with this limitation, simply allows the expression of an opinion,
which may be an opinion about the church's doctrine. Here there is an apparent
contradication in the canon law. The law allows a faithful member to express an
opinion which might contradict the teaching of the church. By implication, one
might think that the canon therefore allows the individual to 'hold' intellectually
an opinion contrary to the teaching of the church. However, because of the duty of
assent (or respect), this is unlikely to be the meaning of the canon. When the
individual expresses an opinion about the church's doctrine he is exercising a
canonical right. But also the canon law requires that person to assent to that
doctrine intellectually. The commentaries are not helpful on this point.
Presumably one has the right to express another's opinion, or an opinion which
one does not hold. Or else this canon is an exception to the duty of submission and
within its terms one may (according to the view of Pesch, for example) still hold
contrary opinions if there is a good reason. In any event, there are other limitations
envisaged by Canon 212. When they express these opinions, the faithful are under
a canonical duty to have "due regard for the integrity of faith and morals and
reverence towards their pastors, and [have] consideration for the common good
and the dignity of persons."

A third right is conferred by the code upon theologians: the right of free inquiry

18. See A. Flannery, Vatican Council I/, Vol. I, pp. 800-805.
19. Coriden, Green and Heintschel, Commentary, pp. 146-7.

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and theological expression and dissent and an autonomous right of academic
freedom to those engaged in theological study. Canon 218 is drawn from Vatican
II's Gaudium et Spes (1966). It states: "Those who are engaged in the sacred
disciplines enjoy a lawful freedom of inquiry and of prudently expressing their
opinions on matters in which they have expertise, while observing a due respect for
the magisterium of the Church." Unlike the other rights, this is not described or
treated as a 'human right': it is merely treated as a kind of concession, a 'lawful
freedom'. It is, as such, changeable and able to be destroyed. The canon applies to
those involved in studies in seminaries and universities. Both clergy and laity are
given this right. Provost's view of the canon is that "At the very least, the
ecclesiastical magisterium must be acknowledged and taken into serious
consideration in expressing theological opinions." But, he says, "This does not
rule out dissent", when this is based on respect.20 The International Theological
Commission's Theses on the relationship between the ecclesiastical magisterium and
theology (1975) are helpful here. These set out guidelines for dissent: dissent is
possible if it is grounded in a "true respect for the magisterium even while
disagreeing with it on a particular point." And this was the view of Cardinal
Joseph Ratzinger who, in 1969, maintained that "Criticism of papal pronounce-
ments will be possible and even necessary, to the degree that they lack support in
Scripture and the Creed, that is, in the faith of the whole Church."21

Thirdly, the right to dissent may be latent within defences to doctrinal offences
under Roman Catholic canon law. The code distinguishes two doctrinal offences.
First, the code creates four basic offences against religion and the unity of the
Church. Canon 751 states: "Heresy is the obstinate post-baptismal denial of some
truth which must be believed with divine and catholic faith, or it is likewise an
obstinate doubt concerning the same." The canon defines apostacy as "the total
repudiation of the Christian faith." Schism is "the refusal of submission to the
Roman Pontiff or of communion with the members of the Church subject to him."
And blasphemy is an offence under Canon 1369: "A person who uses a public show
or speech, published writings, or other media of social communication to
blaspheme, seriously damage good morals, express wrongs against religion or

. against the Church or stir up hatred or contempt against religion or the church is to
be published with a just penalty."

These definitions are much the same as the 1917 code. The revisers of the code
made the point that they may be committed, though the code does not say this,

20. Ibid., pp. 151-2. See also P. Huizing and K. WaIf, "What does the 'right to dissent' mean in the
Church?", Concilium 158 (1982) 3, and H. Haring, "The rights and limits of dissent", ibid., 95, and J.
Provost, "The Catholic Church and dissent", ibid., p. 13.
21. The official Latin Text of the Theses, with a commentary by O. Semmel roth and K. Lehmann, is
published in Gregorianum 57 (1976), pp. 549-63. An English translation is to be found in C. E. Curran
and R. A. McCormick (eds.),Readings in Moral Theology No.3: The Magisterium and Moraliry (New
York, 1982), pp. 151-170. See also R. M. Gula, "The right to private and public dissent from specific
pronouncements ofrhe ordinary magisrerium", Eglise er Theologie 9 (1978), p. 319.

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only when there is evidence of 'bad faith'. If the denial or repudiation is not in bad
faith, then this does not amount to heresy or apostacy. Arguably, therefore, there is
a right to repudiate or deny in good faith - but this is not defined. Also, in relation
to heresy, the denial or doubt must be "obstinate" - percinax - prolonged over a
period. And heresy may be committed only in relation to those doctrines
formulated under Canon 750 - doctrines presented as part of the revealed deposit
offaith. It does not apply to a rejection or denial of non-definitive doctrine. One
presumes that a person still has the right to dissent from non-definitive doctrines
without becoming a heretic. The penalties for heresy, apostacy or schism, found in
Canon 1364, are automatic excommunication for lay people and for clerics,
excommunication or suspension, deprivation, or penal transfer. In addition to
these the general defences in Canons 1323 and 1324 may be available - unwitting
or accidental violation of law, violation out of ignorance, fear or necessity, for
instance. The second category of doctrinal offences are those committed against
church authorities. According to Canon 1371, the following are to be punished
with a just penalty: "A person who teaches a doctrine condemned by the Roman
Pontiff or by an ecumenical council"; also, "a person who pertinaciously rejects
the doctrine mentioned in Canon 752 and who does not make a retraction after
having been admonished by the Apostolic See or by the ordinary." In other words,
it is an offence, punishable with a just penalty (which may include
excommunication), to violate the duty of assent/respect imposed by Canon 752.
Canon 1371 creates, therefore, it seems, two offences: one public - the expression
or teaching of doctrines contrary to those of the pope or council; and the other
private - the failure to assent to non-definitive doctrines of the ordinary
magiscerium. This is a new doctrinal offence: dissent from the ordinary, non-
fallible magiscerium. However, if the individual retracts his dissent, then he does
not suffer a sanction. The practical effect, then, is that there is still in fact a right to
dissent, for the period of dissent, if the offender subsequently makes a retraction.
Also, if a person does not assent for the reasons spelt out in Canons 1323 and 1324
he will be excused from sanctions.

II. The Church of England
The Roman canon law governing the creation of doctrine, its authoritative status,
and the response due from its recipients, certainly gives rise to an obligation on the
part of the faithful; at least to respect that doctrine, at most to give an intellectual
assent and a submission of the will to it. The right to dissent privately and publicly
from such doctrines arises, though the canon law is not clear on this point, if the
individual dissents in good conscience.

In Roman canon law it is a fairly straightforward task to identify the location of
theological or doctrinal statements. The sources of Roman Catholic doctrine are
clearly to be found in the deposit of faith, as transmitted in scripture and tradition,
in the definitive pronouncements on faith produced by the universal magiscerium,
in the non-definitive doctrinal statements of the ordinary magiscerium, in the

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OBEDIENCE TO DOCTRINE IN CANON LAW

constitutions, decrees, declarations, encyclicals, and pastoralleners of popes, the
college of bishops, of individual bishops, of conferences of bishops.

1. The doctrine of the Church of England
Whereas Roman canon law expresses a developed idea of official doctrines, issuing
from the supreme and ordinary magisterium, the law of the Church of England is,
at first sight, rather simpler. Canon A5 of the Revised Canons Ecclesiastical
1964-70 makes the general claim that the doctrine of the Church of England "is to
be found in the Thirty-Nine Articles of Religion, the Book of Common Prayer,
and the Ordinal." The canon also spells out the source of these doctrinal
documents and also their extra-legal, their theological, authority. "The doctrine of
the Church of England is grounded in the Holy Scriptures, and in such teachings
of the ancient fathers and Councils of the Church as are agreeable to the said
Scriptures." This canonical definition (by means of sources) ofthe doctrine of the
Church of England has been given legislative approval indirectly by s.5(1) of the
Church of England (Worship and Doctrine) Measure 1974: "References in this
Measure to the doctrine of the Church of England shall be construed in
accordance with the statement concerning that doctrine contained in the Canons
of the Church of England."

Garth Moore was of the opinion that the theological doctrine of the Church of
England "is that of the Western Catholic church immediately before the
Reformation", as modified at the time of the Reformation and since. Thus, at least
in part, its doctrine is contained in the Book of Common Prayer, in the Thirty-
Nine Articles, in the canons of 1603 and 1969, in the Homilies, in "Acts of
Parliament and ... the judgments of the courts." Moore maintained that "All
these in varying degrees may be said to be authoritative - not necessarily right, but
binding until altered. "22

Whereas the Roman church law claims for its definitive doctrines infallibility,
the law ofthe Church of England does not. By law, Church of England doctrines
are closer to the Roman canonical 'non-definitive' doctrines of the ordinary
magisterium: they may not be true but they possess 'some' authority. The
proposition that these doctrines of the Church of England are 'legally approved'
simply means that the law recognises this as the doctrine of the Church of
England. This is the law's first function - definition - to define what are the
church's doctrines. A second consequence is that the doctrines contained in the
Thirty-Nine Articles and in the Prayer Book can be altered only by act of
parliament or synodical measure.23 Under the 1974 measure, the synod may make
new forms of worship "but the powers of the General Synod under this subsection
shall be so exercised as to ensure that the forms of service contained in the Book of
Common Prayer continue to be available for use in the Church of England."

22. T. Briden and B. Hanson (eds.), Moore's Introduction to English Canon Law 3rd. ed. (1992), pp.
49-50.
23. Halsbury's Laws of England, Vol. 14, Ecclesiastical Law 4th ed., (1975), paras. 335,936, n. 3.

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Other doctrines, contained for example in the resolutions of Lambeth
Conferences, those of the General Synod (such as emerged in the David Jenkins'
debate), acts of Convocations, and reports of Commissions fall into the category of
persuasive doctrinal authorities. As the Anglican Communion has no central
legislative body, the Lambeth Conferences have repeatedly asserted that its
doctrinal statements are merely guidelines and not binding.24As Halsbury puts it:
such doctrines "have thereby derived on a consensual basis an authoritative
character in the churches which have accepted them."25 Indeed, one of the
difficulties in determining the authority of doctrines outside those legally
approved is the view (endorsed by, for example, the Church of England's Doctrine
Commission in 1922)that: "There is not, and the majority of us do not desire that
there should be, a system of distinctively Anglican theology."26

Unlike definitive doctrines in Roman Catholic canon law, the Preface to the
Book of Common Prayer 1662 and the Thirty-Nine Articles 1571 both lay down
the basic principle that ecclesiastical doctrine is reformable. 27Upon this basic idea
a legal principle has emerged applicable to the established church. It is no better
spelt out than by the House of Lords in General Assembly of the Free Church of
Scotland v. Lord Overton (1904): "where the state has by legislative acts established
a church identified by certain doctrines, that church cannot, while retaining the
benefit of establishment, exercise any power of altering those doctrines without
the legislative sanction of the state." Lord Halsbury stressed in the case that "it is
to be remembered that a court of law has nothing to do with the soundness or
unsoundness of a particular doctrine."28 This principle has been applied of course
to the Church of England. Indeed, the whole assumption behind the litigation in
Brown et al v. Runcie et al (1991) was that procedures for the creation of doctrine
imposed by legislation must be followed.29

Today, though parliament may create, approve or amend doctrine (indeed, in
1928 it was parliament that blocked the revision of doctrine contained in the
proposed prayer book), it is primarily the General Synod which may formulate
legally approved doctrine. But it is not an unfettered power. The Church of
England (Worship and Doctrine) Measure (s.4) imposes a self-limiting substantive

24. G. R. Evans and J. R. Wright (eds.), TheAnglican Tradicion: A Handbook of Sources (1991), pp. 383,
389-390.
25. Halsbury, Ecclesiascical Law, para. 314.
26. See Evans and Wright, The Anglican Tradicion, pp. 345,401. See also Believing in che Church: The
Corporace Nacure of Faith: A Reporc by the Doctrine Commission of the Church of England (1981).
27. Art. XXXIV of the Thirty-Nine Articles of Religion (1571) states: "It is not necessary that
traditions and ceremonies be in all places one, or utterly alike, for at all times they have been diverse,
and may be changed of countries, times and man's manners." Also, "Every particular or national
Church, has authority to ordain, change, and abolish ceremonies or rites of the Church ordained only
by man's authority." See E. J. Bicknell, A TheologicallncroduClion co the Thircy-Nine Arcicles of che
Church of England 2nd ed. (1925), pp. 376-388.
28. [1904] A.C. 515, at p. 648.
29. (1991) The Times, February 20.

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OBEDIENCE TO DOCTRINE IN CANON LAW

duty on the General Synod only to create forms of service (when these express
doctrine), in every canon or regulation providing for worship, which are consistent
with and not departures from the doctrine of the Church of England. When it
creates new forms of service it is under a legislative duty to exercise its powers "to
ensure that the forms of service contained in the Book of Common Prayer continue
to be available for use" (s.l, 1974measure). When doctrine is altered by measure,
the measure must be referred under Schedule 2 of the 1969 Synodical
Government Measure to the Synod's House of Bishops; the form of the measure
for final approval must be that as approved by the bishops. The measure must then
also be approved by the two convocations sitting separately before final approval
by the Synod. When the alteration is by canon, such a canon might be submitted
for royal licence and assent only if it has been approved by no less than a two-thirds
majority in each house of Synod.

2. The legal obligacion of belief
The Roman Catholic canonical duty of assent to definitive doctrines finds a
parallel in the Church of England's basic principle (in Article VI of the Thirty-
Nine Articles) that only those doctrines which are contained in Holy Scripture, or
"proved thereby" (deriving from scripture), require an assent offaith: only these
must, according to the legally approved doctrine contained in the Thirty-Nine
Articles, "by law", be believed. Indeed, under Canon CIS in their declaration of
assent, archbishops, bishops and clergy, are obliged to declare their "belief in the
faith which is revealed in the Holy Scriptures." The law of the Church of England
imposes the legal duty to give an assent of the intellect, a legal obligation of belief,
to scriptural doctrines, or those deriving from scripture, upon all the faithful. In
contrast, it imposes the obligation of intellectual assent to doctrines contained in
the authoritative English theological documents only upon the clergy and lay
office-holders in the Church of England, not upon the all faithful.

According to s.2 of the Church of England (Worship and Doctrine) Measure
1974, "It shall be lawful forthe general Synod to make provision by Canon with
respect to the obligations of the clergy, deaconesses and lay officers of the Church
of England to assent or subscribe to the doctrine of that Church and the forms of
that assent or subscription which may include an explanatory preface." As
Halsbury points out, under the Clerical Subscription Act 1865, "formerly no
clergyman could be ordained or hold a living or curacy without making his
declaration of assent to them." However, this has been repealed by the synod's
1974 measure (Schedule 1(1)).

Canon CIS of the revised canons of course sets out the terms of the modern
declaration of assent that must be taken by clerics. The preface to the declaration
states that the Church of England "professes the faith uniquely revealed in the
Holy Scriptures and set forth in the catholic creeds ... it [the church] has borne
witness to Christian truth in its historical formularies, the Thirty-Nine Articles of
Religion, the Book of Common Prayer and the Ordering of Bishops, Priests and

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Deacons." The declaration imposes on clerics "loyalty to this inheritance of
faith". Under Canon CIS, archbishops, bishops and clergy are under a duty (the
word used in the canon is "shall") to make this declaration of assent. This is a
canonical duty of intellectual assent structured in a way very similar to the Roman
Catholic duty of intellectual assent or submission incumbent on all the faithful.

As the canons, according to the principle stated in, for example, Bishop of Exeter
v. Marshall (1868), are binding on the clergy in spiritual matters, assuming assent
to doctrine is a spiritual maner, we might reasonably conclude that the clergy are
under a legally enforceable duty, derived from the canons, to give intellectual
assent to the doctrines contained in the Articles of Religion.30 In the event that
they do not, this is the legal basis of possible disciplinary action effected
executively or judicially or the occurrence of the other legal consequences. This is
effectively what was attempted in Gorham v. Bishop of Exeter (1850). Gorham
maintained, amongst other things, that infants were not made members of the
church at baptism. The Queen's presentation of him, and his induction, was
refused by the bishop. He held "unsound doctrines, contrary to the true christian
faith, contrary to and inconsistent with the doctrine of the Church of England",
against the Thirty-Nine Articles, the prayer book and so on. The Court of the
Arches upheld the bishop's refusal to induct. Though the question for the Privy
Council was jurisdictional- whether an appeal would lie to it or the Upper House
of Convocation (it held that appeal did lie to the Privy Council) - the effect of the
Arches' decision was that the cleric was to be disadvantaged for his lack of assent. 31
Indeed, when the Worship and Doctrine Measure under s.4 recognises the
Synod's power to create by canon the requirement for such declarations of assent,
in so doing the Synod is bound to ensure, "as in the opinion of the general Synod",
that these are "neither contrary to, nor indicative of any departure from, the
doctrine of the Church of England in any essential matter."

The legal duty imposed on clergy to assent intellectually to the church's
doctrines is also imposed, of course, on lay officers of the church. Under s.2(2) of
the Worship and Doctrine Measure 1974" 'lay officers' means licensed workers,
readers, lay judges of consistory or provincial courts, and lay holders of other
offices admission to which is for the time being regulated by Canon." For
example, the judicial ecclesiastical officer, the diocesan chancellor, is obliged
under Canon G3 to assent "to the faith which is revealed in the holy scriptures and
set forth in the Catholic creeds and to which the historic formularies of the Church
of England bear witness" (Canon G3). The diocesan registrar must make the same
declaration.

30. (1868) L.R. 3 H.L. 17.
31. (1850) Moore's Special Report 462; (1850) Eng. Repts. 177:this report is not accurate and does not
contain many of the judicial statements found in Moore's Special Report. For the unreliability of the
English Reports see M. Smith, "On using the English Reports as a source for ecclesiastical law: a
cautionary tale", 1(3) Ecclesiastical Law Journal (1988), p. 32. For a discussion of the history of the
declaration of assent, the generality of modern declarations (and the scope for intellectual freedom), see
the 1981 Doctrine Commission's Report Believing in the Church, pp. 129-134.

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OBEDIENCE TO DOCTRINE IN CANON LAW

Whereas clergy have a legal duty, via their declaration, to assent intellectually to
the doctrines in the formularies and the Thirty-Nine Articles, the lay faithful are
not under a legal duty to do so. Unlike Roman Catholic canon law which imposes
the duty of intellectual assent, to definitive and non-definitive magisterial
doctrine, on all the faithful, the laity of the Church of England simply have a
'right', not a duty, to assent intellectually to the legally approved doctrines. When
it says that the Thirty-Nine Articles are agreeable to the Word of God, Canon A2
states that these articles "may be assented to with a good conscience by all
members of the Church of England. " Canon A3 also says, of course, that the form
of worship contained in the Book of Common prayer, and by implication the
doctrine contained in it, "may be assented to" by the church's members.

The principal effect of the rule that the laity have not got a duty of assent, is that
they have a public legal right to private rejection of the church's doctrines. The law
confers on them the right of free religious thought, even as members of the church.
They have a legal right to withhold intellectual assent to the church's legally
authoritative doctrines. (This is of course not a legal right enjoyed by Roman
Catholics.) However, there may be a public obligation to assent. The moment at
which a Church of England member publicly withholds assent, or challenges these
doctrines, may have legal consequences. A public denial of these doctrines
may result in the imposition of ecclesiastical sanctions - not necessarily
enforceable judicially in the courts, but enforceable executively by the clergy -
such as refusal of admission to the sacraments.

3. The right to dissent and doctrinal offences
In the Church of England the law provides that an individual has a right to
withhold intellectual assent to the doctrines of the church, and to disagree with
that doctrine publicly, if this does not constitute an ecclesiastical doctrinal offence.
Unlike Roman Catholic canon law, there is no separate and distinct right to dissent
conferred explicitly by church law. As with the problem of rights in civil law, if it
exists, the ecclesiastical right to dissent might be explained under the standard
residualist theory of constitutional law. An individual has the right to contradict
privately or publicly the legally approved doctrines of the Church of England
insofar as their contradiction is not forbidden by church law.

The Ecclesiastical Jurisdiction Measure 1963, s.14, provides that proceedings
may be instituted under the measure against any of the persons specified in s.17
charging "(a) an offence against the laws ecclesiastical involving matters of
doctrine, ritual and ceremonial." Proceedings for doctrinal offences may be
brought under s.17 against an archbishop, any diocesan bishop, or any suffragan
bishop commissioned by a diocesan bishop, or any other bishop, or a priest or
deacon. Proceedings may be brought only when, at the time ofthe commission of
the offence or when proceedings were instituted, the cleric held or holds
preferment in any diocese or resided in a diocese. The first point to make is that
doctrinal offences might not be committed by the laity or by lay ecclesiastical

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officers. It is arguable therefore that, on the face of it, because of the terms of the
measure, and its exclusive application to the clergy, there is a fundamental right of
dissent under church law (the common law of blasphemy excepted) vested in the
laity and lay ecclesiastical officers. Indeed, with lay officers who are obliged to
make a declaration of assent, the position is no different; proceedings for doctrinal
offences cannot be brought against them simply because the canons of the Church
of England are not, in law, binding on the laity. It seems to be a settled principle
that the ecclesiastical courts do not possess jurisdiction to entertain suits against
the laity. 32

By s.15 the offence may be proceeded against only if committed "within the
province of Canterbury or York". And by s.16 there is a limitation period of three
years for doctrinal offences: "No proceedings ... shall be instituted unless the act
or omission constituting the offence, or the last of them if the offence consists of a
series of acts or omissions, occurred within the period of three years ending with
the day on which proceedings are instituted."

This is an important point. If the doctrinal offence is based on a public dissent, a
cleric's public challenge of the church's doctrine, there is a right to dissent
(because the dissent will by operation of law not result in proceedings). The right
operates retrospectively to cure an earlier illegality: it arises after the expiration of
the limitation period. A cleric's otherwise illegal public expression of dissent is by
law not actionable once a period of three years has elapsed since the dissent. In
these circumstances, a doctrinal offence is incapable of being followed by
ecclesiastical criminal proceedings. Again, the right to dissent is latent within the
rule about limitation periods.

According to s.lO, of course, proceedings for a doctrinal offence are to be heard
in the Court of Ecclesiastical Causes Reserved. In exercising its jurisdiction this
court, under s.45(3), is not bound by any decision of the Privy Council in cases
involving doctrine. By s.18 of the Ecclesiastical Jurisdiction Measure 1963
proceedings against archbishops or bishops must be by way of complaint laid
before the registrar of the relevant province; and those against priests or deacons
by way of complaint laid before the registrar of a diocese. Section 19 of the 1974
measure sets out a list of those having locus standi to make a complaint of a
doctrinal offence against priests and deacons. These are "authorised complainants"
(under s.66 one authorised by the bishop); in the case of incumbents of a parochial
benefice, the complaint may be made by six or more persons of full age whose
names are on the electoral roll; in the case of a stipendiary curate licensed to a
benefice, the complaint may be made by the incumbent.

32. H alsbury, Ecclesiastical Law, para. 308; W. Dale, The Law of fhe Parish Church 6th ed. (1989), Chs. 4
and 5. For judicial recognition of the idea, see Lord Hardwicke's statement in Middleton v.Crofts
(1736), discussed in The Report of fhe Archbishops' Commission on the Canon law of the Church of England
(1947), and Blune v. Park LaneHoulUd. [1942] 2 K.B. 253. The canons will bind the1aityonly insofar
as they are declaratory of the generallaw. They are, of course, binding on the c!ergy: see Bishop of
Exeter v. Marshall (1868) L.R. 3 H.L. 17.

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OBEDIENCE TO DOCTRINE IN CANON LAW

Basically, in English church law, there are five doctrinal offences: heresy,
blasphemy, depraving the prayer book, maintaining impious opinions contrary to
the Christian religion, and doctrines repugnant to the Thirty-Nine Articles.33The
basis upon which a doctrinal offence might be committed, of course, is to challenge
the statement, contained in the canons, that the doctrine of the Church of England
is grounded in scripture, the teachings of the fathers and the councils as agreeable
to the Word of God. Again the right to dissent is latent within the definitions of
these offences, the areas to which the offence does not apply according to its terms,
and it arises within the recognised defences to these offences: whenever an
individual might legally be excused of his dissent; or when dissent is justified.

According to Burn, if a cleric advances publicly "a false opinion repugnant to
some point of doctrine clearly revealed in scripture and either absolutely essential
to the Christian faith or at least of most high importance", then he is guilty of
heresy.34The leading case is Williams v. Bishop of Salisbury (1864).35Though it
may still represent the law, we must be cautious about its practical applicability
today. Williams was a clerk in holy orders and was prosecuted under the Church
Discipline Act 1840 for publishing heretical doctrines in contravention of the
Thirty-Nine Articles. These, the report says, were of a criminal nature. There
were twenty-two charges against Williams, including his argument that the Bible
is "an expression of devout reason", "the written voice of the congregation" and
not "the Word of God", that the offering of Christ was not for the propitiation of
the sins of the whole world. Williams was found guilty of the charges by the Arches
Court. On an appeal from the Arches Court to the Privy Council, the Lord
Chancellor set out some basic principles which help us to construct our right of
dissent. They fall into two categories.

First, in relation to matters of doctrine on which the Church has not given any
definite rule or standard of faith or opinions, the Lord Chancellor said, "there is so
far freedom of opinion that they may be discussed without penal consequences."
If a rule on a matter of doctrine is not "expressly and distinctly stated, or which is
not plainly involved in or to be collected from that which is written", we might
conclude that there is a legally enforceable right of free thought and free
expression: in cases where the doctrine of the church is silent or neutral. Secondly,
however, if the court is satisfied that an individual has committed heresy, still the
dissent may be 'cured' ifthe procedural rules concerning the prosecution of heresy
are not followed. The Privy Council's recommendation that Williams' sentence
(given by the Arches Court) be reversed, was based on this ground. The Privy
Council set down the procedural requirement that the articles of charge must

33. See Halsbury, Ecclesiastical Law, para. 1354.
34. R. Burn, Ecclesiastical Law 4th ed. pp. 304, 305.
35. (1864) 2 MooreP.C.C.N.S. 375. Our use of this case must be cautious. It is a Privy Council decision
and under the Ecclesiastical Jurisdiction Measure 1963, ss. 45, 48, these decisions in matters of
doctrine are no longer binding on the Court of Ecclesiastical Causes Reserved. It remains, however, a
persuasive authority.

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distinctly state the opinions which the cleric maintains and must set out the
published passages of the work in which the heretical statements appear. The
articles of charge must specify the doctrines of the church which the individual's
statements are alleged to contravene. In short, if these procedural rules are not
followed by the church authorities in a doctrinal prosecution, then the accused
escapes liability.

Conclusion
Disciplinary action taken in the Roman Catholic Church against Hans Kung and
Johannes Metz, the lengthy investigations of theologians such as Schillebeeckx,
and the debate in the Church of England over David Jenkins, Bishop of Durham,
and John Robinson, Bishop of Woolwich and the author of Honest to God (1963),
raise important questions about freedom of thought and expression in these
churches.36 What is crucial to recognise is that these issues are fundamentally
questions of canon law. The right of such people to freedom of thought and
expression is determined by an analysis of the internal law of these churches. As
disciplinary action by ecclesiastical authorities in the Roman Catholic Church is
governed by the duty of assent to definitive doctrines, and the confused position of
submission to non-definitive doctrines of the magisterium, so freedom of and
expression is rooted in a right implicit in the exceptions to these duties and in the
explicit right of dissent based on conscience. In the Church of England, though
there are equivalent duties of assent to the church's doctrines, the basic legal
principle is that any statement of doctrine not clearly offensive to the church's
legally approved doctrines, or upon which the church's doctrines are silent, is not
actionable in the ecclesiastical courts. The church possesses legal power to
institute doctrinal proceedings. But, as a matter of fact, the ecclesiastical courts
have not entertained such proceedings in recent years, even when these have
seemed likely. For this reason it is tempting to conclude that something like an
ecclesiastical convention has developed, fettering the use of these legal powers,
giving to Synod rather than the courts the function of resolving such questions.
Whatever the role of the difficulty in identifying whether a statment is offensive to
ecclestiastical doctrine, an essentially theological problem, or whether inaction by
church authorities is now explicable by means of ecclesiastical convention, in the
final analysis, it is the canon law which, in the Church of England, and in the
Roman Catholic Church, supplies the right to the individual's private and public
withholding of assent to ecclesiastical doctrine.

36. For the Robinson controversy, see K. W. Clements, Lovers of Discord: Twentieth Century
Theological Controversies in England (1988), pp. 178-217. For the Synod debates, sparked off by the
Jenkins' controversy, see the General Synod February Group of Sessions 1985 Report of Proceedings,
Volume 16, No.1 (CIO Publishing, 1985), pp. 128-163, 171-182.

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