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

• Author: M.H. Ogilvie
• Pages: 1-30

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CHAP TER 1

A BRIEF HISTORICAL

OVERVIEW OF

THEORIES ABOUT THE

RELATIONSHIP OF

CHURCH A ND STATE

A. INTRODUCTION

How the law of Canada at the begi nning of the twenty-f‌irst century has

come to understand its relationship w ith the religious institutions and

individuals of faith w ithin the geopolitical entity called Canada h as

been shaped primarily by two traditions of thought, inherited mainly

from Engl and, alt hough inf‌luenced als o by the Un ited States, Scotland,

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

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.

Concern with how societies may be ordered ha s been a preoccu-

pation of Christian thinkers since the t ime of Christ, if for no other

reason than to en sure that societies create and protect a space within

which Christi ans may live out their beliefs fa ithfully and in prepar a-

tion for eternal life. But another reason for this preoccupation ha s been

that most, although not all, Christian traditions have also emphasized

shaping th is world into con formity with Biblical principles of social

and moral conduct, which has resulted i n the domination of the terr i-

tories and states within which Christians have found themselves. This

feature of the expression of faith is not peculiar to Christ ians, rather

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

ern Europe and of North America over the past t wo millennia simply

RELIGIOUS INSTITUTIONS AND THE LAW IN C ANADA

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ref‌lects the success of Chr istianit y in these regions i n contrast to the

success of other religions in other regions of t he 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

that is both uniquely characteristic of Christianity among the great

world religions and is also characteristic of Western Christendom be-

fore and after the Reformation and until recently: cuius regio eius reli-

gio. Each state should contain only one church, that of its ruler, and

every subject within th at state should concurrently be a member of that

church. Thus, the fundamental legal and constitutional issue resulti ng

from this co-ex istence was the def‌inition of their respective spheres of

operation and inf‌luence and the ongoing attempt by each to constrain

the other within t heir respective alleged spheres.

In the course of the twentieth centur y, the accelerating religious

pluralism of Western societies, re sulting 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-for mulation of the relat ionship 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 gr ips with

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

fundamental assumptions on which the law relat ing to religious insti-

tutions has, for reasons of h istory, been based, remai n Christian under-

standings of the relat ionship 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 itsel f.

In fact, there is a spectr um of Christian theological positions on

the proper relationship of church and state and many of these p ositions

have been ref‌lected at one time or another in the religious h istory of

Canada. In contrast to the United States, which since 1789 has been

constitutionally located toward one end of the spectr um, Canada has

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

ition of strict separation of church and state ref‌lect s both Anabaptist

seventeenth-century Puritan a nd eighteenth-century Enlightenment

views, the Canadi an tradition of their intermingling ref‌lects the more

theocratic positions of both Roman Catholic and Reformed thinkers.

The medieval and early Reformed stres s on unity within a state is

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

its concept of a Parliament, sovereign over all indiv iduals and instit u-

tions within its territorial jurisdiction. The constitutional nature of the

sovereignt y of Parliament was, in l ate seventeent h-centur y Engla nd,