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The Rubric Driven Life: Part II

Some General Principles of Interpretation for Discovering the Possibilities of Dispensations with Regard to the Rubrics of the BCP & Canon Law for Bishops and Priests

By Fr. Glenn Spencer

Editor's note: Fr. Glenn continues our occasional series on rubrics. (See Part I here.) Here at All Saints, we often say that we live a rubric driven life: that is, our life follows and pays attention even to the small details of the Prayer Book. Rubrics are the italicized directions for how each service should be celebrated. If you were to read through the rubrics, you would be amazed at how many different topics they address, from hand positions to making sure people add the Church into their wills. And yet, there is a remarkable amount of direction that is left out by the rubrics in our BCP. This series helps us learn more about the rubrics, and how we are to interpret them. You will never read those italicized words in the same way again!

The process by which a bishop dispenses a rubric or a canon is first of all for the good of the common life of the Body of Christ, even though a dispensation may be applied to individuals. The process also recognizes that some laws or rubrics may not be dispensed at all, those which would overturn what ancient bishops called the heavenly or eternal laws of salvation and behavior.

But with regard to that which may be dispensed, the process is similar to the manner in which judges approach Statutory Interpretation, which is the means by which courts interpret and apply legislation. Sometimes courts have to resolve the meaning and intent of statutes, for example, when some of the words appear ambiguous or vague or when the judge thinks that the statute may be misapplied in a particular case. When a judge attempts to uncover the meaning of a particular statute he may employ various hermeneutical tools and methods. For example, he may study the legislative history and the purpose of a particular statute.

For our purposes, it is significant that statutory interpretation was central to the English common law system, in which courts decided cases and also gave the reasons behind their decisions. In the English system, the reason, not just the decision, was also binding. The general idea, the basic assumption, was that courts were meant to achieve the “Intent of Parliament.” English courts developed three rules, three heuristic questions, three hermeneutical tools: the “mischief rule,” the “literal rule,” and the “golden rule.” I describe below, the three heuristic questions, though not in any order of importance or favor, and show how this process provides an orderly and well tested procedure for approaching the rubrics of the BCP as well as canon law:

The "golden rule"

First, the “golden rule,” in the English legal system, is used in order to steer clear of an outcome of a literal interpretation when such an interpretation is manifestly absurd, is repugnant to the common life, or is in conflict or significantly divergent to the original intent of the statute. Justice James Parke, a Privy Councillor, as well as a member of the House of Lords, remarked in 1836 upon the “golden rule” of English Law:

“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.”

The "mischief rule"

Sir Edward Coke (1552-1634)

Secondly, the application of the “mischief rule” is meant to uncover the “mischief or flaw” that a statute was meant to put right. Heydon's Case of 1584 is a landmark case because it was the first to apply the “mischief rule” for statutory interpretation. It is a basic assumption that statues are enacted for the public good, just as we assume that rubrics and canons are enacted for the good of our common life in Christ’s Church. Lord Edward Coke, who was lead prosecutor in the Gunpowder Plot, and who is considered by many to be the greatest jurist of the Elizabethan period, described the heuristic strategy of the mischief rule with 4 questions:

1) What was the law before the statute?

2) What was the mischief or defect that the law (before the statute) did not remedy?

3) What remedy does this law apply to the mischief?

4) The true, verified reason of the remedy?

In summary, Lord Coke says that it is the duty of the judge to move forward and subdue the mischief and promote the remedy in order to vanquish any evasions that might continue the mischief in some other manner, “according to the true intent of the makers of the Act (statute or law) pro bono publico, 'for the public good.'”

An example of how the mischief rule may be applied to the rubrics of the BCP will demonstrate its functionality. I will apply the mischief rule to the rubric of the 1662 BCP, upon which, the 3rd rubric on page 84 of our BCP was constructed:

1) What was the rubric before the rubric in question was instituted?

The first rubric is found in the 1552 BCP:

“And if any of the bread or wine remain the curate shall have it to his own use.”

2) What was the mischief or defect that the rubric of 1552 did not remedy?

The original 1552 rubric was understood to mean that the curate may carry from the Church the surplus of bread and wine that had not been consecrated, for his personal, family use. The problem was that over the 110 years between 1552 and 1662, the rubric proved to be ambiguous, and Puritan clergy of the Church of England interpreted it to mean they could carry the consecrated, as well as unconsecrated bread and wine, out of the church and place them upon their family tables for use at their common meals. After the execution of Charles I, the practice became even more widespread, so that the practice was taken as evidence of the unholiness of the Church of England. Furthermore, it is the case that Bp. John Cosin, the author who expanded the rubric to forbid taking the consecrated bread out of the Church, cited only the Puritan misuse for the new rubric: “It is likewise here ordered, ‘that if any of the bread or and wine remain, the curate shall have it to his own use.’ Which words some curates have abused and extended so far, that they suppose they may take all that remains of the consecrated bread and wine itself, home to their houses, and there eat and drink the same with their other common meats; at least the Roman Catholics take occasion hereby to lay this negligence and calumny upon the Church of England…’”

3) The remedy of the 1662 rubric:

“And if any of the Bread and Wine remain unconsecrated, the Curate shall have it to his own use: but if any remain of that which was consecrated, it shall not be carried out of the Church, but the Prieſt, and such other of the Communicants as he shall then call unto him, shall, immediately after the Blessing, reverently eat and drink the same.”

Thus the remedy of the 1662 rubric, applied to the mischief, was to make a distinction between the consecrated and unconsecrated elements, thus deliberately calling attention to the change in the elements at the consecration, to put an end to the Puritan sacrilege of the precious body and blood of Christ, and thus to put right the noble and holy character of the Church of England.

4) The intention:

Thus, by considering the history of the original rubric, as well as Bp. Cosin’s own revised and redacted prayer book, we have discovered that the true intention of the makers of the rubric was to put an end to the Puritan sacrilege, so that the reputation of the Church of England may be snatched from the maw of oblivion. It was not meant for any other purpose, and to go beyond the original intent is to disregard the actual purpose of the rubric and, thus, to subject it to a similar fraudulent misuse as the Puritan clergy had subjected the original rubric.

The "literal rule"

Thirdly, the “literal rule,” sometimes called the “plain meaning rule,” is that statutes are to be interpreted by attending to the ordinary meaning of the words, phrases, punctation, and sentences of the statute. An old hermeneutic rule is similar to the literal rule: “If the plain sense makes good sense, seek no other sense.” Nevertheless, in application to the interpretation of statutes, the “literal rule” is conditioned by excluding words with intentional special meanings, as well as absurd and pitiless interpretive outcomes. Another caveat is that the plain sense of the law has to take into consideration the audience, the intended reader, and interpreter. The assumption is that the intended audience (legal professionals like jurists and judges) would grasp that the text is meant to be a legal text, and therefore the word “literal” should not to be taken in the most democratic sense possible, as would be the case of directions for use that appear on a box containing a new cell phone.

So, to return to our example from the “mischief rule,” the Puritan clergy of the Church of England, disregarded the original intent of the rubric, and focused upon the literal meaning of the rubric, in order to have a pretext for their impieties.


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