This article affirms the importance of ecclesiastical polity as a theological–juridical discipline and explores its connection to ecclesiology and church law. It argues that the Anglican Communion, though not itself a church, nevertheless has a lightly structured ecclesiastical polity of its own, mainly embodied in the Instruments of Communion. It warns against short-term, pragmatic tinkering with Church structures, while recognising the need for structural reform from time to time to bring the outward shape of the Church into closer conformity to the nature and mission of the Church of Christ. In discussing Richard Hooker's contention that the Church is a political society, as well as a mystical body, it distinguishes the societal character of Anglican churches from the traditional Roman Catholic conception of the Church as a societas perfecta. In the tradition of Hooker, the role of political philosophy in the articulation of ecclesiology and polity is affirmed as a particular outworking of the theological relationship between nature and grace. The resulting method points to an interdisciplinary project in which ecclesiology, polity and church law, informed by the insights of political philosophy, serve the graced life of the Church in its worship, service and mission.

This article identifies the liberties of the Church and the City of London which were intended to be protected by Magna Carta from 1215. The liberties intended were a recognition of a form of autonomy for the Church and the City and have no connection with the individual freedoms that are identified for protection by modern human rights instruments. The clauses in Magna Carta conferring that autonomy are among the very few that have not been repealed, but they have not been asserted for hundreds of years. While the idea of church autonomy has resonance with the ideas of subsidiarity and sphere-sovereignty developed in Catholic and Calvinist social teaching from the late nineteenth century, recent American jurisprudence suggests that religious autonomy may be the best way to defend religious liberty in the future. This article suggests that, just as English kings were persuaded to provide towns, colonial endeavours and eventually corporate free enterprise with limited autonomy for a fee, so charters conferring limited autonomy on religious communities may provide a philosophical and practical basis from which to defend religious liberty in the future, even if the assertion of individual religious liberty becomes politically incorrect.

Concerns about legal pluralism, the co-existence of more than one legal system within a state, have become pronounced in recent years, owing to fears about the operation of sharia law in Western societies. At the same time, the concept of legal pluralism has become ubiquitous within legal literature. Paradoxically, the concept is both politically controversial and academically banal. This article contends that a major failing of the concept of legal pluralism has been the inability to distinguish legal norms from other forms of social control. It is suggested that this failure can be overcome by developing the concept of a ‘legal order’ as found in the work of Maleiha Malik and the understanding of law as discourse in the work of the German theorists Niklas Luhmann and Robert Alexy. It is argued that developing these approaches provides a means by which legal norms can be distinguished without adopting either a wholly objective or a completely subjective approach and without focusing exclusively upon the legal norms generated by the state.

In the 1580s at Temple Church, a youthful Edward Coke, recently admitted to the bar, most likely witnessed the ‘Battle of the Pulpit’ waged between the Anglican Richard Hooker, who preached on Sunday morning, and the Puritan Walter Travers, who answered him on Sunday afternoon. That contest symbolised a broader conflict between the Anglicans and the Puritans in late sixteenth- and early seventeenth-century England over economic and political affairs that Coke would, in his own way, try to reconcile in both the theory and practice of English law. Embracing Hooker's emphasis on the past and the seamless continuity of the English legal tradition, Coke would endeavour to make it look as though the strong contemporary impulses in favour of economic freedom and parliamentary government, close to the hearts of many Puritans such as Travers, were but a normal expression of the ‘ancient constitution’ associated with the reign of Edward the Confessor in the first half of the eleventh century. Though Coke temporarily succeeded in conciliating some of the Puritans, the compromise would not satisfy everyone.

This article addresses religion from a legal perspective. It argues that religious matters should be settled outside the secular legal system; otherwise, the secular legal system would not be truly secular. However, religion demands special protection as a public good and social value, as it constitutes an extrinsic constitutional limit of the legal. For a secular legal system, protecting religion ultimately means protecting human beings' pursuit of the suprarational. Protecting suprarationality has three important legal consequences: (a) suprarational acts in the strictest sense should never be validated as legal acts; (b) democratic communities should not use suprarational arguments in legal discourse; and (c) the secular legal system cannot regulate suprarationality or the essentials of the religious community. The protection of religion demands both a dualistic structure that distinguishes the political community from the religious community and the treatment of religion as a right: the right to religion.

Neutral citation – the practice of giving each judgment of a court a reference number or citation – has been in use in the senior courts of England and Wales since 2001. The beginning of January 2016 saw the introduction of a new system of neutral citation for English ecclesiastical courts. The practice direction bringing this practice into force is reproduced below and is preceded by an introductory essay by the Dean of Arches and Auditor.

English courts have historically been wary of deciding cases that rest on contested findings of fact about the practices and doctrines of religions. This is particularly true in defamation cases. However, the recent case of Shergill and others v Khaira and others [2014] UKSC 33 in the UK Supreme Court has narrowed the principle of non-justiciability on the grounds of subject matter. Defamation cases such as Blake v Associated Newspapers Limited [2003] EWHC 1960 (QB) have treated religious doctrine and practice as matters not justiciable per se, even if a determination is essential for the exercise of private or public law rights and obligations. The Supreme Court indicated in Khaira that it may be appropriate for courts to treat such disputes as justiciable. The common law, domestic statute and the European Convention on Human Rights protect the right to reputation, and Khaira indicates that it is time that defamation claims resting on disputes about religious doctrine and practice were entertained by the courts to a much greater extent than recent cases have allowed. However, the judgment has left open the possibility of some religious disputes still being non-justiciable.

High-profile cases in the Supreme Court of the United States (‘SCOTUS’) on religion tend to attract a certain amount of academic comment in the United Kingdom but US judgments are cited only infrequently by the superior courts in the UK. In return, SCOTUS rarely cites foreign judgments at all. The reason, it is suggested, is that the effect given by the First Amendment to the US Constitution is to render US case law of less relevance to the UK than, for example, judgments from jurisdictions such as Canada and Australia.

Following the Reformation, uniformity was a key principle undergirding worship in the Church of England. The Crown claimed the prerogative to order the use of, and to alter, Church services in spite of the provisions of any Act of Uniformity, the Canons or any Declaration of Assent. This caused confusion among the clergy and others as to who had ‘lawful authority’ to permit such usages or changes. This confusion was exacerbated by episcopal claims to a jus liturgicum. Statute and case law, as well as the wording of the Declaration, also ensured rigidity in doctrinal adhesion. Since the Church of England (Worship and Doctrine) Measure 1974 and recent amendments to the Canons and the Declaration of Assent, this rigidity has been relaxed and clarity provided as to who may authorise services or permit departure from otherwise authorised forms of service.

A title such as this hardly suggests one is breaking new ground. But I edge into print on the subject, stirred by the interesting Speaker's Lecture given by the outgoing Second Estates Commissioner, Sir Tony Baldry, in December 2014, and published in the May 2015 edition of this Journal. It reads as the enthusiastic, even romantic, expression of the State–Church relationship by an almost doctrinaire establishmentarian; and I use the word ‘doctrinaire’ deliberately, for I have spent a lifetime of bumping up against leaders of both Church and State, from Enoch Powell to George Carey (let alone Derek Pattinson and Philip Mawer), who exude a firm conviction that the establishment of the Church of England is entrenched somewhere in the Apostles' Creed. Sir Tony continues in this tradition as he serenely asserts ‘We come then to the reign of Henry VIII. I think the important point here is that the Church of England is the creation of Parliament.’ But would not Augustine, Anselm and the drafters of Magna Carta (who are cited in Baldry's previous paragraph) all be turning in their graves? And what apoplexy would have come upon Newman, Pusey and Keble to have learned that their Church was thus created? Or, more to the point, is the ecclesiastical action of Parliament in the days when church and nation were co-terminous of any relevance to whether and how an unbelieving Parliament should hold control of a Christian body today? However, it is his brief section on ‘Parliament and Anglican liturgy’ which prompted the present submission.

While the English Church shared in celebrating the 800th anniversary of Magna Carta, not least its own part in gaining those rights for everyone, the Church of England was reversing the principle that people are innocent until proved guilty. Such is the pressure of today's concern about child abuse, historic and present. As evidence mounts of the injustices done by false accusations against some high-profile public figures, we are less aware of the toll on other individuals whose turmoil does not hit the headlines. Those teaching and caring are often targeted for claims, and the Church of England has been toughening its procedures.

On 27 March 2014 the Crown Prosecution Service announced that it had reviewed the evidence gathered by Sussex Police during its investigation into allegations of sexual abuse by Peter Ball, former Bishop of Lewes (1977–1992) and Bishop of Gloucester (1992–1993), and that he would be prosecuted on the following charges

In Loyola High School v Quebec (Attorney General) the Supreme Court of Canada (SCC) found that a Roman Catholic high school run by the Jesuits in Montreal, could be exempted from the provincial Ethics and Religious Culture Program (ERCP), legislatively mandated for all schools in Quebec, whether public or private, provided it offered an ‘equivalent program’, if from a Roman Catholic perspective. In the earlier companion case, SL v Commission scolaire des Chênes, the Court held that religious parents could not claim an exemption for their children enrolled in the public schools from the same course. This discrepancy between the legal treatment of children in fee-paying religious schools and children in the public school system is one of several interesting aspects of the Loyola decision which this comment will address. Notwithstanding this discrepancy, the Court also restated its earlier observations about the nature and meaning of section 2(a), ‘freedom of conscience and religion’, of the Canadian Charter of Rights and Freedoms (the Charter), thereby reassuring some Canadian observers that it is committed to a more robust protection of freedom of religion than may have been surmised from its earlier freedom of religion jurisprudence. Equally interesting is that, in coming to its decision, the majority of the Court moved away from the Court's earlier approach to freedom of religion issues of applying first section 2(a) and then section 1 of the Charter, which operates as a brake on full freedom of religion, to a proportional analysis more in tune with proportionality tests for religious freedom found in English and European cases. Whether this is the start of a long-term trajectory in Canadian freedom of religion cases or a single instance remains to be seen.

Anglican religious communities are currently experiencing decline. Member numbers are decreasing as their average age increases, recruitment of young people is virtually impossible and it is not uncommon to find a small and dwindling group of elderly religious inhabiting premises designed for a time when committing oneself to life as a member of a religious order was much more fashionable. There are several underlying reasons: young people are offered a wider and more diverse array of possible occupations; employment with a specific employer is no longer undertaken for life, but people tend to move from one job to another and from one sector to another; women in particular have more choices than previously and for those with a religious vocation the priesthood is a more exciting alternative; and, bearing in mind that many Anglican religious communities incline to the Anglo-Catholic end of the spectrum, the Ordinariate beckons.

The jurisprudence of the European Court of Human Rights (ECtHR) on religious freedom is well known and is the subject of frequent comment. The aim of this paper is to present an overview of a particular aspect, where the ECtHR had to consider a dispute in which a religious court was involved at an earlier stage. In these cases, nolens volens, the ECtHR had to adjudicate upon the competence and procedure of these courts and tribunals. To date, there have only been nine such cases, of which only three have led to a judgment. Yet, from the remaining six which were declared inadmissible or manifestly ill-founded, there is something to be learned about the approach of the ECtHR to religious courts.