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

• Author: M.H. Ogilvie
• Pages: 1-30

1

CHAPTER 1

A BRIEF HISTORICAL

OVERVIEW OF

THEORIES ABOUT

THERELATIONSHIP OF

CHURCH AND 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 and

individuals of faith within the geopolitical entity called Canada has

been shaped primarily by two traditions of thought, inherited mainly

from England, although inf‌luenced also by the United States, Scotland,

and France — namely, the common law and Christianity. Christianity

itself has historically 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 historical traditions, the law of Can-

ada has also recently been challenged to accommodate the religious

and cultural pluralism brought to Canada by the immigration 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 time of Christ, if for no other

reason than to ensure that societies create and protect a space within

which Christians may live out their beliefs faithfully and in prepara-

tion for eternal life. But another reason for this preocc upation has been

that most, although not all, Christian traditions have also 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 Christians have found themselves. This

RELIGIOUS INSTITUTIONS AND T HE LAW IN CA NADA2

feature of the expression of faith is not peculiar to Christians, rather

is characteristic and natural to many faiths. The domination of West-

ern Europe and of North America over the past two millennia simply

ref‌lects the success of Christianity in these regions in contrast to the

success of other religions in other regions of the world.

The historical formulation of the relationship between religious in-

stitutions and the geopolitical units within which they exist as one of

“church and state” ref‌lects a conception of their political relationship th at

is both uniquely characteristic of Christianity among the great world

religions and is also characteristic of Western Christendom 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 the def‌inition of their respective spheres of operation

and inf‌luence and the ongoing attempt by each to constrain the other

within their respective alleged spheres.

In the course of the twentieth century, 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 courts

have in the past two decades or so been required to come to grips with

the implications of these changes, especially in Charter litigation, the

fundamental assumptions on which the law relating to religious 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 as a background to the legal text itself.

In fact, there is a spectrum of Christian theological 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 the United States, which since 1789 has been

constitutionally located toward one end of the spectrum, Canada has

been largely located toward the opposite end. Whereas the U.S. pos-

ition of strict separation of church and state ref‌lects both Anabaptist

seventeenth-century Puritan and eighteenth-century Enlightenment

views, the Canadian tradition of their intermingling ref‌lects the more

theocratic positions of both Roman Catholic and Reformed thinkers.

The medieval and early Reformed stress on unity within a state is

also ref‌lected in the other Canadian inheritance, the common law, and