To Covenant or not to Covenant? That is the question

Six years ago, the Windsor Commission proposed, in its Windsor Report, that a Covenant of some sort would be a useful instrument for the healing of the rifts in the Anglican Communion. To help people understand what was intended by this term “Covenant” a model Covenant was published as an appendix to the Report. Since then, the idea of a Covenant has been accepted either as a Good Thing, or at least an Inevitability, and any debate that I have seen has been generally focused on the details of what ought or ought not to be included in the Covenant.

What has been singularly missing in the discussion is either a convincing argument for the concept of a Covenant, or even much debate as to whether this is the only or even best option that ought to be considered. It is the only option on the table, but that does not mean that it is the only desirable option.

A covenant is a form of legal instrument, but it is not the only kind of legal instrument that might be available to help the Anglican Communion to move forward. What has been largely missing in the whole debate about the Covenant is the fundamental question of instrument choice.

Professor Les Pal has published a very helpful (and very accessible) paper on the topic of instrument choice in the civil realm called “There Ought To Be a Law!” (You can get a PDF copy here. Read it!) Pal notes that “most people confronted with objectionable behaviour will mumble some version of the phrase ‘there ought to be a law.’” And he says that “Justice officials and politicians often reach for a law because it is a primary instrument of government, and because it makes intuitive sense to influence behaviour and situations by making rules.” In other words, just as surgeons are wont to perform surgery, legislatures are wont to legislate. In the Anglican world, our Synods are our legislatures, and the Acts of Synod and Canons (and, in the Church of England, the Measures) are our legislation. But, warns Pal, “too often ... questions about instrument choice are not asked.” That is, legislators don’t tend to ask whether there are other possibilities than legislation to accomplish their goals. But Pal points to a range of possible options which ought to be considered.

Among Pal’s list of options for government are:

• Static Response: Choosing to do nothing
• Information
• Expenditure
• Taxation
• Service Delivery / Organization of Government
• Capacity and Institution Building

Obviously, some of these options are not applicable in the Church, and expenditure raises serious questions of the potential for a form of bribery. But I suggest that three of Pal’s areas of possible options are worth considering.

The first is Static Response. Pal says that this is not the same as a merely passive non-response. As he puts it “The idea that ‘there ought to be a law’ assumes that there must be a government response for every problem. But a rational approach to instrument choice should consider the option of deliberately doing nothing.” I wonder if the development of the Covenant has been in part motivated by a desire to be seen to be doing something? But should we not have considered the possibility that doing nothing (as a Communion) might have been a rational response to a crisis that has largely been manufactured?

Information is also an option. Since 1978 the Lambeth Conferences have repeatedly requested Provinces to study the question of human sexuality, and particularly homosexuality, using as wide as possible a range of resources. Some Provinces have taken this task on with great diligence. Others appear to have limited their resources to Leviticus. And perhaps others haven’t even gone that far. Information on what the Windsor Report helpfully describes as a presenting issue is widely available. Whether it is widely read is another matter. As I have written elsewhere, I wonder if the Lambeth Conferences of 1978, 1988, and 1998 intended that this study should be merely an academic exercise, of if they ever contemplated the possibility that, having done the study and come to certain conclusions, at least some Provinces in their particular contexts would act on those conclusions? The latter is one reading of what the Diocese of New Westminster, to name the diocese mentioned in the Windsor Report, has done. And they have made a significant effort to make available the fruits of their study and the processes by which they came to their conclusions. Using information to influence behaviour is a slow process, and often seen as a liberal response to a problem (any problem can be solved by education), and Pal notes that “Compared to law, the use of information is based on a voluntary response.” But, he goes on to say, “insofar as it changes norms and attitudes over time ... it may be more effective than coercion.” At the level of the Anglican Communion, what this might look like would be to commit to continue to meet and discuss contentious issues, even if we are not sure we will ever understand or agree with each other. As Winston Churchill put it, “better to jaw jaw than to war war.”

The third option that seems to be applicable to the development of the Anglican Communion is Pal’s last one: Capacity and Institution Building. This is based on the idea that developing the capacity of local or non-governmental organizations to deal effectively with their own concerns at their own levels will strengthen the whole of society (or, in our context, the Communion). It also recognizes the idea that, as Pal puts it, “those closest to the problem or situation are best suited to dealing with it ... (the notion of subsidiarity).” (I will pick up this idea in a later post on Provincial autonomy.) Part of the inter-Provincial and inter-diocesan partnerships that we are blessed to participate in has been about just this issue. In sharing our joys and sorrows, our struggles and successes, we learn from each other how to be more effective and committed in our mission in our different contexts, benefiting from the outside perspectives of Anglicans who come from different contexts but who are committed to helping to build up the whole Communion. The trouble with this strategy is that is requires autonomy. As Pal puts it, “capacity and institution-building implies some degree of autonomy for third parties, to the point that they may make mistakes....” but even mistakes “may increase capacity insofar as people learn from their mistakes.” And, of course, what constitutes a mistake, or whether the perception that a mistake has been made is itself mistaken, is a matter of debate.

These are some of the non-legislative options that ought to have been considered six years ago. Even in the realm of legislative action, there are the possible choices between formal legislation and quasi-legislation. In a very helpful essay on the latter, Professor Norman Doe distinguishes between the two in that formal legislation uses the power of coercion, whilst quasi-legislation (codes of practice, guidelines and so on) uses the power of persuasion. “Secular government employs formal law to coerce results, and quasi-legislation to persuade results.” (See Doe’s essay. “Ecclesiastical Quasi-Legislation” in Norman Doe, Mark Hill, Robert Ombres, eds., English Canon Law, Cardiff: University of Wales Press, 1998, p. 93 at 94.) Some have suggested that the Covenant could be adopted without section 4, which would in effect convert it into a form of quasi-legislation by removing the coercive part.

The point of all of this is that there could be other options, but none has ever been proffered and no convincing case has ever been made that a Covenant - any Covenant - is the best way forward for the Communion. It has been simply accepted, or conceded, that the Covenant is not only the best option, it is the only option. Certainly it is the only option on the table, and we are presented with the Covenant as is, take it or leave it.

The question of instrument choice was simply bypassed in an effort to get to the most obvious solution to the real problems of the Communion. But this kind of short cut will not do. Even now, six years after the Windsor Report, and when Provinces are actively considering the adoption of the proposed Covenant as the only option, it is not too late to raise the questions of instrument choice. As Pal asks at the end of his essay, “Ought there to be a law?”

Ought there to be a Covenant?