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

• Author: M.H. Ogilvie
• Pages: 1-31

Chapter

One

A

Brief Historical Overview

of

Theories

About

the

Relationship

of

Church

and

State

A.

INTRODUCTION

How the law of

Canada

at the

beginning

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

Canada,

before

and

after

Confederation

in

1867,

in

ways both patent

and

latent.

Concern with

how

societies

may be

ordered

has

been

a

preoccupa-

tion

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

preparation

for

eter-

nal

life.

But

another reason

for

this preoccupation

has

been that most,

although

not

all, Christian traditions have also emphasized shaping this

world

into

conformity

with Biblical principles

of

social

and

moral con-

duct,

which

has

resulted

in the

domination

of the

territories

and

states

within which Christians have

found

themselves. This

feature

of the

expression

of

faith

is not

peculiar

to

Christians, rather

is

characteristic

and

natural

to

most

faiths.

The

domination

of

Western Europe

and of

North

America over

the

past

two

millennia simply

reflects

the

success

of

1

2

RELIGIOUS INSTITUTIONS

AND THE LAW

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

insti-

tutions

and the

geopolitical units within which they exist

as one of

"church

and

state"

reflects

a

conception

of

their political relationship char-

acteristic

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 subject within that state should concur-

rently

be a

member

of

that church. Thus,

the

fundamental

legal

and

con-

stitutional

issue

resulting

from

this 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 plu-

ralism

of

Western societies, resulting partly

from

the

fragmentation

of

Protestantism

since

the

early

nineteenth

century

and

partly

from

the

global

movement

of

people

of

non-Christian

faiths

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

last decade

or so

been required

to

come

to

grips with

the

implications

of

these changes, especially

in

Charter

litigation,

the

funda-

mental

assumptions

on

which

the law

relating

to

religious institutions

has,

for

reasons

of

history, been based, remain Christian understandings

of

the

relationship

of

civil

and

spiritual

authority. Therefore,

it

seems

suitable

in an

introductory chapter

to

provide

a

brief overview

of

these

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

these 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 constitution-

ally

located toward

one end of the

spectrum, Canada

has

been largely

located toward

the

opposite end.

While

the

U.S.

position

of

strict

separa-

tion

of

church

and

state

reflects

both Anabaptist seventeenth century

Puritan

and

eighteenth century Enlightenment views,

the

Canadian tra-

dition

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 its

con-

cept

of a

Parliament, sovereign over

all

individuals

and

institutions with-

in its

territorial

jurisdiction.

The

constitutional

nature

of the

sovereignty