A defense now proffered by the Presiding Bishop and her supporters is that the same procedures were followed in the recent cases of Bishops Davies and Moreno. Past violations of the canon’s clear provisions are said to justify current ones. In considering this defense, it is necessary to distinguish three senses of “precedent” in legal usage. One is the well-known sense of precedent as a formal ruling on a legal issue by a competent juridical body. This is clearly not the case here as no one has suggested that the prior cases were determined to be canonical by any body reviewing the canonical issues. These cases are not offered as reasoned legal rulings, but as a fait accompli.
A second sense of precedent is that in which the actions of parties to a contract are used to interpret terms that are vague or ambiguous. In civil law this concept is referred to as “course of performance,” and this type of precedent is often used as an aid to interpretation for vague or ambiguous contractual terms such as those relating to timeliness or quality. For example, terms like “promptly” or “standard grade” are ones that can sometimes be interpreted by the parties’ performance. The applicability of this principle can be seen in the present context by noting that the meaning of the vague term “forthwith” in Canon IV.9 is given meaning by the Presiding Bishop’s own action in giving notice to Bishop Schofield within 48 hours of receiving the certification from the Review Committee. But the requirements of inhibition in IV.9 and for consent by a majority of the whole number of bishops entitled to vote are not vague or ambiguous terms. They are expressed in mandatory language using precise terms that are clearly defined and used elsewhere in the canons. Express terms control when in conflict with arguable interpretations based on prior actions.
“A second sense of precedent is that in which the actions of parties to a contract are used to interpret terms that are vague or ambiguous”
In interpreting a church’s constitution and canons, we should be wary of likening them to a contract among a few parties (such as a buyer and seller) whose conduct is now in dispute. In the case of a private contract, the parties themselves could, if they wished, modify or even rewrite the contract by mutual agreement.
ECUSA’s rules present a very different case. ECUSA’s constitution prescribes a procedure for changing the rules. You can’t change the rules without following those procedures.
If the rules have ambiguous language or potentially conflict with each other, past practice may carry some weight in resolving a dispute—but it cannot be determinative. Nor would the weight ordinarily come close to what a court might accord in interpreting an ordinary private contract.
U.S. constitutional law is replete with cases in which the Supreme Court has held that longstanding practice cannot trump the plain language of the Constitution.
KJS and her enablers have long been dismissive of orthodox critics canon law arguments—typically ignoring them or brushing them off with generalities (e.g., “the parliamentarian told me so”).
If the ACI legal memo elicits a more serious response, we will know it is hitting home.
Apparently, the Anglican Communion Institute website got hacked in an apparent effort to quash this memorandum and its addendum. The ACI incurred some expense to get back online. It would be good if people went to their website and contributed. I did. They have a PayPal button to make it easy:
http://www.anglicancommunioninstitute.com
When discussing abuse ,a fourth, more apposite sense of “precedent” would be “pattern or practice.”
I’d be grateful for the documentation on Bishop Davies’ “deposition.” As I recall at the time the House of Bishops simply adopted a resolution that he was no longer a member of the House. Bishops Fairfield and Bena resigned from the House – as did Bishop Cox.
I had a problem trying to access the entire report……I had to re-boot twice, and still wasn’t able to read it all. The first page is all I could access. Guess that’s because so many are trying to read it all.
Tom Rightmyer (#5), there is an account of the history of Bishop Davies and his deposition [url=http://accurmudgeon.blogspot.com/2008/04/abuses-of-abandonment-canons-ii.html]in this post[/url] (scroll down about two-thirds).