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

• Author: M.H. Ogilvie
• Pages: 1-30

1

CHA PTER 1

A BRIEF HISTORICAL

OVERVIEW OF

THEORIES ABOUT

THERELATIONSHIP OF

CHURCH A ND STATE

A. INTRODUCTION

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

RELIGIOUS INSTITUTIONS AND T HE LAW IN CA NADA2

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