A Brief Historical Overview of Theories about the Relationship of Church and State

AuthorM.H. Ogilvie
How the law of Canada at the beg inning of the twenty-f‌irst century has
come to understand its relationship with the religious institutions a nd
individuals of faith within the geopolitical entity called Canada ha s
been shaped primarily by two traditions of thought, inherited mainly
from England, although inf‌luenced also by t he United States, Scotland,
and France namely, the common law and Christianity. Christian ity
itself has hi storically shaped the common law in England, and in Can-
ada, before and after Confederation in 1867, in ways both patent and
latent. In addition to these two hi storical traditions, the law of Can-
ada has also recently been challenged to accommodate the religious
and cultural plurali sm brought to Canada by the immigr ation patterns
of the last two decades, of people from countries outside the Western
Christian tradition.
Concern with how societies may be ordered has been a preoccu-
pation of Christian thinkers since the ti me of Christ, if for no other
reason than to en sure that societies create and protect a space w ithin
which Christians may live out their beliefs faith fully and in prepara-
tion for eternal life. But another reason for this preocc upation has been
that most, although not all, Christian traditions have al so emphasized
shaping this world into conformity with Biblical principles of social
and moral conduct, which has resulted in the domination of the terri-
tories and states within which Christi ans have found themselves. This
feature of the expression of faith i s not peculiar to Christians, rather
is characteri stic and natural to many faiths. The domination of West-
ern Europe and of North America over the pa st two millennia simply
ref‌lects the success of Chr istianity in these regions in contrast to the
success of other religions in other reg ions of the world.
The historical formulation of the relationship between religious in-
stitutions and the geopolitical unit s within which they ex ist as one of
“church and state” ref‌lects a conception of their political relationship th at
is both uniquely character istic of Christianity among the great world
religions and is also characteristic of Western Chr istendom before and
after the Reformation and until recently: cuius regio eius religio. Each
state should contain only one church, that of its ruler, and every sub-
ject within that state should concurrently be a member of that church.
Thus, the fundamental legal and con stitutional iss ue resulting from th is
co-existence was t he def‌inition of their respective spheres of operation
and inf‌luence and the ongoing attempt by each to constrain the other
within their re spective alleged spheres.
In the course of the twentieth centur y, the accelerating religious
pluralism of Western societies, resulting partly from the frag mentation
of Protestantism since the early nineteenth century and partly from
the global movement of people of non-Christian faith s to the West, has
resulted in the re-formulation of the relationship from one of “church
and state” to one of “religion and the law.” Although Canadian cour ts
have in the past two decades or so been required to come to grips with
the implications of these ch anges, especially in Charter litigation, the
fundamental as sumptions on which the law relating to relig ious insti-
tutions has, for reasons of hi story, been based, remain Christian under-
standings of the relationship of civil and spiritual authority. Therefore,
it seems suitable in an introductory chapter to provide a brief overview
of these assumptions a s a background to the legal text itself.
In fact, there is a spectr um of Christian t heological positions on
the proper relationship of church and state and many of t hese positions
have been ref‌lected at one time or another in the religious history of
Canada. In contrast to t he United States, which since 1789 has been
constitutionally located toward one end of the spect rum, Canada ha s
been largely located toward the opposite end. Wherea s the U.S. pos-
ition of strict separation of church and state ref‌lects bot h Anabaptist
seventeenth-century Puritan and eighteenth-century Enlightenment
views, the Canadian tradition of their interm ingling ref‌lects the more
theocratic positions of both Roma n Catholic and Reformed thinkers.
The medieval and early Reformed stress on unity within a state is
also ref‌lected in the other Ca nadian inheritance, the common law, and

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