Risk Aversion, Compliance and the Church: Some Practical Suggestions
In his article published on 24 July 2024, David Robertson argued that a form of Erastianism is taking over the contemporary Presbyterian church. In my article of 30 July 2024 I suggested that it is better seen as an internalised form of managerialism.
In his gracious and helpful comments on my article, David Robertson asks: "what are we going to do about it"? Fair enough question. It's one thing to critique. What constructive suggestions might be offered as a way forward?
I don't think the answer is simply "be more courageous", or just ignore government laws. What I hope to do in this post is to offer some principled reasons from both a legal and theological perspective for adopting a different approach to that which is routinely taken by the church today.
(1) Returning to Presbyterian first principles
First, the Presbyterian church needs to recover its Presbyterian mojo. The basic principle of Presbyterian ecclesiology is as follows:
"The Lord Jesus, as king and head of His Church, has therein appointed a government, in the hand of Church officers, distinct from the civil magistrate" (Westminster Confession of Faith, 30.1).
Christ is head of the church – not Caesar. The lifeblood of Presbyterian theology is a robust assertion of the church's independence from the civil government.
Now, this does not mean that the civil government cannot regulate aspects of the life of the church. The Westminster Confession is not purporting to establish the church as a zone of total immunity from civil law.
For example, churches which renovate their buildings should obey planning laws and building codes, the criminal law applies over church property, and so on. As Peter Martyr Vermigli wrote, "If a homicide should be committed in the temple, or a conspiracy hatched against the Commonwealth, would magistrates leave these murderers and conspirators unpunished?"
Civil laws can regulate aspects of church life. But there are some aspects of the life of the church which the civil ruler may not regulate. Where do we draw the line?
A very helpful document is Declaration on the Spiritual Freedom of the Church contained in the Code book of the General Assembly of Australia. This Declarationstates that the civil ruler has "no lawful right to interfere" with the jurisdiction of the church. It defines the jurisdiction of the church as follows:
This jurisdiction comprehends the determining, interpreting, changing, adding to and modifying its constitution and laws, its subordinate standards and Church formulas; the preaching of the Word; the administration of the Sacraments; the exercise of ecclesiastical discipline, including the admission and exclusion of members, and the ordination, induction, and suspension, or deposition of office-bearers; and generally all matters touching the doctrine, worship, discipline and government of the Church.
(Note the reference to amending the "constitution and laws" of the church).
This paragraph essentially states that the fundamental nature and character of the church is to be determined by the church in light of Scripture.
The Presbyterian Church of Australia has also adopted a Statement on Freedom of Religion which declares that "Christ is the head of the church, and the state has no right to intrude on the doctrine, discipline or worship of the church. The state does not have the authority to enforce or direct religious beliefs or practices".
(2) Institutional tails and the ministry dogs
Secondly, the institutional tail should not wag the ministry dog. The institutional church is merely trellis for the vine of gospel ministry. The institutional church can be a helpful support to ministry, by providing such things as buildings, funds and infrastructure.
But the interests of the institution of the church should only ever be secondary to that of gospel ministry. The priority – indeed, the only justification for the existence of the institutional church – is to support and serve the church's ministry. This means that the church needs to evaluate everything through the lens of the priority of ministry, and focus on the spiritual and theological nature of the issues at stake. "He must become greater; I must become less".
There is not one single word in Scripture about the institutional church. The Bible speaks of the visible church – the united gathering of those who visibly profess the true religion, together with their children (see WCF 25.2). But of the institution of the church – its assets, clerks, funds and trustees – the Bible knows nothing.
Regrettably, this proper order is often reversed. Too often the interests of the institutional church are placed above the gospel. The incident highlighted by David Robertson is but one of many. Gospel ministry and the flourishing of congregations are too often subordinated to legal risk and the priorities of the institutional church.
(3) Consider alternative interpretations
The specific issue that prompted David's original article was the application of the Work Health and Safety Act 2011 (NSW) to changes to the constitution and procedures of the Presbyterian Church of New South Wales. The Trustees took the view that the Act imposes a requirement for the church to consult workers regarding possible changes that might affect them.
But this is not the only possible interpretation of the Act. There is an old adage that if you ask two lawyers for their opinion, you will get four different answers. This is not just because lawyers are crafty and will do anything to further their clients' interests. Legal texts need to be interpreted, and other interpretations are almost always possible. This is for several reasons.
First, within our system of government it is the courts that have the function of determining the meaning of legislation. When they carry out this task, courts apply a series of interpretive principles. One of these principles is that, where possible, courts interpret legislation so as to protect and promote rights such as religious freedom and freedom of speech. There is also a general reluctance to interfere in the internal governance of churches.
That is, the words of a statutory provision might appear to mean something, but the courts may interpret the provision to mean something a little different, in order to protect rights or freedoms.
The second reason why other interpretations are often possible is because of the difficulty of applying legislation to unforeseen situations. Statutory interpretation is about discerning legislation intention. However, in this case, the Act is being applied to a situation (change to church constitutions) which was almost certainly not within the purview of the drafters of the Act.
When Paul in Romans 13 says that every person should "be subject to the governing authorities", and obey civil law, this says nothing about how civil law should be interpreted. The question of meaning/interpretation and obedience are separate issues.
The church should not always reflexively incline to the most risk-averse interpretation of applicable laws. Instead, the church should consider alternative interpretations, where these are reasonably open (which will often be the case), and which are more consistent with the nature and purpose of the church.
(4) Rethink our attitude to risk
Fourth, the church needs to recalibrate its approach to risk. Today, the existence of risk is often seen as a sufficient reason not to proceed with something – no matter how important or how low the risk. Under cover of risk aversion, many good and worthwhile things have been prevented.
The church needs to be prepared to accept that some level of risk is inevitable in anything worthwhile. Risk exists along a spectrum, not a binary. Some risks have a low likelihood of eventuating. Some risks are worth taking. Some risks are outweighed by the benefits. Risk is something that can be managed.
The existence of risk is not, in and of itself, a reason not to do something. In short, the church needs a more nuanced approach to risk.
(5) The nature of church power
Fifth, the church needs to stop mandating compliance with (a particular interpretation of) civil law. Regrettably, this is an increasingly common tendency in the Presbyterian church today. Our church codes are becoming littered with requirements, drawn from (a particular interpretation of) civil law, which are then imposed as mandatory obligations across the entire denomination.
This is entirely beyond the proper scope of church power. The historic Presbyterian view is that the power of the church and church officers is ministerial and declarative. Church officers and courts have the power to declare the truths of the Scriptures, and shepherd the flock by teaching, warning and exhorting.
One bitter irony is that Presbyterians have historically been very suspicious of the hierarchies inherent in the Roman Catholic and Anglican systems of government. The church today needs to recover a healthy suspicion of church hierarchies. Theologically, church officers have no power whatsoever to enforce compliance with (a particular interpretation of) legal requirements. Attempting to do so borders on an abuse of church power.
(6) Cultivate a posture of disobedience
My final proposal will be controversial. It is that the church today needs to start cultivating a posture of disobedience to civil law. It needs to start flexing its Presbyterian muscle. It needs to remember the limits to the power of civil governments. Of course, we should not needlessly pick fights. But the time is coming, and now is, when civil law will stifle the gospel.
Compliance is not an absolute good. The increase in government law – and more pointedly, the way in which the church responds to those laws – is squeezing the church into a particular mould. This is a mould of legalism and bureaucracy where the interests of the institutional church routinely predominate over ministry imperatives. And where gospel ministry is at risk of being crushed under the collective weight of well-intentioned rules, interpreted in the most risk-averse manner possible, and mandated across entire denominations.
If muscles are not exercised, they atrophy. The defining challenge of the 21st century will be how the church responds to situations like these. Governance – not liberalism – is the major threat to the church today.
- Dr Ben Saunders is a legal academic
No comments:
Post a Comment