Church and State in Scotland

Developing law

Francis Lyall

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409450641
• eBook ISBN: 9781317166290
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The interaction of faith and the community is a fundamental of modern society. The first country to adopt Presbyterianism in its national church, Scotland adopted a system of church government, which is now in world-wide use. This book examines the development and current state of Scots law. Drawing on previous material as well as discussing current topical issues, this book makes some comparisons between Scotland and other legal and religious jurisdictions. The study first considers the Church of Scotland, its 'Disruption' and statutorily recognised reconstitution and then the position of other denominations before assessing the interaction of religion and law and the impact of Human Rights and various discrimination laws within this distinctive Presbyterian country. This unique book will be of interest to both students and lecturers in constitutional and civil law, as well as historians and ecclesiastics.

1  Introduction

In 1603 the Presbyterian Protestant James VI of Scotland, well-tutored by George Buchanan,¹ succeeded Elizabeth I of England to become James I of England and as such the Head of the Church of England. However the ‘Union of the Crowns’ was a personal union only, Scotland remaining a separate entity with its own legislature until the Union of the Parliaments of Scotland and England in 1707. That union was what it was presented as: a union of two parliaments, Parliament at Westminster becoming the legislature for the United Kingdom of Great Britain. Three hundred and ninety-one years later the Scottish Parliament was revived and a Scottish Executive established by the Scotland Act 1998. Legislative competence in specified matters is reserved to the Westminster Parliament, but all else is devolved to the Parliament at Holyrood.² Unlike Westminster the Scottish Parliament is unicameral and does much of its work through a committee system. It is composed of 129 Members of the Scottish Parliament (MSPs), 73 elected by individual constituencies on a first-past-the post system and 56 for eight larger additional member regions by proportional representation from party electoral lists.

In the 1707 union the two countries were not assimilated. The Scottish legal system, its law and judicial arrangements continued, albeit that desirable changes in Scots law requiring primary legislation often had to wait before securing a place on the Westminster timetable.³ Matters religious were excluded from the negotiations of the 1707 Union, the presbyterian polity of the Church of Scotland being affirmed by the Protestant Religion and Presbyterian Church Act, 1706 c. 6, and inserted into the 1707 Treaty with England.

Presbyterian government is Scotland’s gift to the ecclesiastical community.⁴ Its conciliar structure is democratic, and (to the regret of some) unencumbered by sacerdotal elements.⁵ It affords a role for the informed individual believer’s understanding of the Gospel as expressed in whichever Protestant Confession(s) that is/are authoritative within each presbyterian denomination.⁶ Unlike Episcopal systems it needs no permanent authority vested in individuals (bishops), and yet the decisions of its courts provide a continuing centre. Where there is considered to be need for a change in doctrine, worship, discipline or governance, the Barrier Act 1697 requires the affirmative vote of a majority of presbyteries before the General Assembly enacts the appropriate legislation.

When two authorities, the secular and the ecclesiastical, vie for the obedience of the citizen and the latter claims to have eternal effect, there is always a potential for disagreement, which in extremis may result in conflict. Within the Christian tradition Augustine spoke of the ‘Two Cities’.⁷ History has seen many theoretical solutions imperfectly applied including erastianism,⁸ clericalism (occasionally disparagingly labelled caesaropapism)⁹ and total separation.¹⁰ At present the accepted pattern in Scotland is cooperation, but the norms of our society continue to mutate. As in other countries there can therefore be no finality to the relationships between the state authorities and the individuals and associations of believers who owe allegiance to another authority.

Social expectations and the informal constraints of accepted behaviour have weakened. Being an ‘elder of the Kirk’ has lost its cachet. Some say that secularism has eroded faith. I disagree. What has happened is that an unacknowledged but long drift from formal religion has been revealed. Doctrinal diversity has produced indifference. Rightly or wrongly, traditional ecclesiastical authority has eroded as office-holders have continued in office (and salary) while apparently no longer believing in the formal doctrines of the denominations that give them their role. In a sense this is good. Superficialities vanish. Faith is tested when expressing it penalises and compliance with its outward forms is no longer a passport to respectability. In the modern state, secularism can be a useful adjunct to tolerance. There is a danger that secularism may be abused should militant secularists seek to denigrate and stifle the religious impulse of others. Nonetheless, in a democratic society secularism remains useful as providing a neutral environment within which diverse manifestations of religion can be practised within the bounds of reasonable public order. From the religious point of view, the end result is not determined by the civil arrangements.

---

1 Buchanan (1506–82) was the author of The Art and Science of Government among the Scots: De Iure Regni Apud Scotos, D.S. McNeil, trans. (Glasgow: Maclellan, 1963): A Dialogue on the Law of Kingship among the Scots, R.A. Mason and M.S. Smith, eds. (Aldershot: Ashgate, 2004). Buchanan thought the monarch should be a God-fearing Protestant, and that the monarchy had limitations: unlike the later concept of the ‘Divine Right of Kings’. Michel de Montaigne was another of Buchanan’s pupils. D. Macmillan, George Buchanan: A Biography (London: Simpkin, Marshall, 1906).

2 Reserved matters include foreign affairs, defence and human rights: Scotland Act 1998, ss. 29–30 and Sched. 5 as amended by the Scotland Act 2012. Some restricted matters are noted infra elsewhere. The original Scottish Executive was renamed the Scottish Government by s. 12(2)(a) of the Scotland Act 2012. Further amendment is expected following upon negotiations following upon the referendum on Scottish independence of 2014. See The Smith Commission: Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament, 27 November 2014 (Edinburgh, 2014) (https://www.smith-commission.scot) and the UK Government White Paper United Kingdom: An enduring settlement, January 2015, Cm 8990.

3 Thus the Succession (Scotland) Act 1964, a much-needed major revision of the law, was drafted in the early 1930s.

4 Cf. N. Doe, Christian Law: Contemporary Principles (Cambridge: Cambridge UP, 2013).

5 G.D. Henderson, Presbyterianism (Aberdeen: Aberdeen UP, 1954); J. Kennedy, Presbyterian Authority and Discipline (Edinburgh: St Andrew Press, 1960). See also Cox 7–11; J.L. Weatherhead, The Constitution and Laws of the Church of Scotland (Edinburgh: Church of Scotland, 1997)(a slim summary); A. Herron, A Guide to the General Assembly of the Church of Scotland (Edinburgh: St Andrew Press, 2012), his A Guide to the Presbytery (Edinburgh: St Andrew Press, 1983) and his A Guide to Congregational Affairs (Edinburgh: St Andrew Press, 1976). W. Mair (1830–1920) produced many editions of a Digest of Church of Scotland practice and procedure which included relevant civil law cases. Mair was replaced by the six editions of Cox (1935–76) which contains many historical documents relevant to the union of 1929.

6 The theological knowledge or understanding of many elders may now be defective, or even absent.

7 The City of God (many eds) was written between AD 412 and 426. On the sources of its concepts see E. Gilson’s Introduction to the Fathers of the Church, Inc. translation of 1950; L.S. Mazzolani, The Idea of the City in Roman Thought (trans. S. O’Donnell) (London: Hollis and Carter, 1970), 242 ff.

8 T. Erastus (R.W. Lee, ed.), Theses Touching Excommunication (Edinburgh, 1844, Whitefish MO, Kessigner, 2010). Cf. J.N. Figgis, The Divine Right of Kings, 2d ed. (Cambridge: Cambridge UP, 1914; New York, Harper and Row, 1965), ‘Erastus and Erastianism’, 293 ff.

9 Had it been implemented The First Book of Discipline of 1560 would have approached this position.

10 Given the number of court cases involving the First Amendment to the US Constitution it would be ludicrous to classify the US as an example.

2 1560–1843 Reformation to Disruption

Pre-Reformation Scotland

The history of pre-Christian Scotland is obscure. Christianity came to Scotland with such as Ninian and Columba and developed into what is often spoken of as Celtic Christianity.¹ However, the ultimate effect of the Synod of Whitby of 664 AD was to install the authority of Roman Catholicism.²

Pre-Reformation Scotland was poor, with significant differences between its parts. Economically the Lowlands and coastal districts were better off than the Highlands. Major seaports could engage in trade and fishing. The burghs and their hinterlands operated a money economy, while rural areas depended on subsistence farming and barter. Agriculture did not improve until the fifteenth century, when a fuller introduction of feudal landholding introduced the relationship of feudal superior and vassal more widely than previously known, with a consequent stratification of society.³

In pre-Reformation Scotland, the links between church and state were considerable. The allocation of a defined territorial area for spiritual purposes begins with the responsibilities of bishops early in history, but the further subdivision of that territory into parishes in which particular priests had a responsibility for bringing the ordinances of religion also made sense.⁴ Exactly when parishes came to Scotland is unknown, but obviously once the Roman Catholic version of Christianity was dominant that Church’s parish structure was effective. Many modern Church of Scotland parishes can be traced back well before the Reformation, particularly in rural areas.⁵ By the time of the Scottish Reformation all Scotland had, at least on paper, been divided into parishes each with a minimum of one church building, the inhabitants of each area being allocated to that parish and church, and given responsibility for the upkeep. The constitution of a parish for ‘spiritual purposes’ also brought considerations beyond prayer and church services. The Catholic Church accepted responsibility for education and for welfare, albeit the discharge of that responsibility was erratic.⁶ This caused disquiet, not to say dissension, exacerbated by the fact that the Church owned anything up to one half of the land, and one half of that belonged to the monasteries.⁷

The Reformation in Scotland

The Reformation is often spoken of as if it was accomplished swiftly. It was not. There are, of course, the climactic events of the anti-Catholic statutes of 1560 and the adoption of the Scots Confession, but the harbingers of the Reformation are to be found decades before Luther’s Ninety-five Theses,⁸ and the political, economic and theological struggles of the Reformation went on for decades thereafter. Indeed, notwithstanding ecumenism, it could be argued that the Reformation and the Counter-Reformation are not yet done. More conservatively, the Reformation in Scotland arguably starts soon after the ideas of Luther came to the Kingdom in the early sixteenth century, but did not find substantial completion until the end of that century with the commitment to Presbyterianism.

That said, the Reformation of 1560 is an appropriate point to mark.⁹ Previous history is only marginally relevant. The statutes of the Scottish Reformation do in places imply that there was a Church of God in Scotland under Roman Catholicism, but the statutory repudiation of the beliefs and the external manifestations of Catholicism was such that it is of little value for us to delve into the detail of prior history. What was done after 1560 elaborates and builds upon t...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Abbreviations and other matters
• 1 Introduction
• 2 1560–1843 Reformation to Disruption
• 3 1843–1929 Disruption to union
• 4 The Church of Scotland today
• 5 Outside establishment
• 6 Education
• 7 Personal relationships
• 8 Other interactions of religion and law
• 9 Conclusion
• Index