Traditions as Easements

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

In property law, an easement1 is a non-possessory right to use or enter upon the real property of another for a specific and limited purpose. This is a dense definition, so let us break down the elements to make sure things are clear. Real property and personal property are the two categories of property under the law2. Simply, real property means land and anything permanently attached to it (e.g., a non-mobile home). A non-possessory property right is simply a right related to property that does not grant the holder of that right any possessory interest in the property, which is to say that the property does not ‘belong to’ the holder of the right. The interest or right that is an easement (or that is created by an easement) is “to use” or “to enter upon” the real property of another for a specific and limited purpose because such right may entail the use of the real property (e.g., an easement to use a particular beach) or the traversal of it (e.g., an easement to pass over some property to reach the aforementioned beach). An easement must be for a specific and limited purpose, because a more general right would no longer be an easement but a ‘proper’ right or interest in the real property (i.e., some form of ownership).

These, then, are the four elements on which I wish to focus and which I will be using for the purposes of this article:

  1. The right must pertain to real property.
  2. The right must be non-possessory.
  3. The right must be related to use3.
  4. The right must be specific and limited.

Traditions are easements.

In order to understand this, we must look at how easements are created4. There are, in fact, a number of ways that an easement can be created, among these are: express grant or reservation, implication, necessity, estoppel, and prescription. We will briefly go over each of these:

  1. An easement that is created by express grant or express reservation is one that is created by explicit (i.e., direct) language in some document5.
  2. An easement that is created by implication is one that is created by some existing use (e.g., if one traditionally or habitually crosses property A to reach property B and property B is sold, then the implied easement to cross property A is acquired along with property B).
  3. An easement that is created by necessity is one that is created by some necessary use (e.g., if one must cross property A to reach property B and property B is sold, then the necessary easement to cross property A is acquired along with property B).
  4. An easement that is created by estoppel is one that is created by 1) a grant of permission and 2) reliance on that grant (e.g., if the owner of property A says that the owner of property B may cross property A to extract water from a river adjacent to property A and the owner of property B builds a canal or pipeline, then the owner of property B will have acquired an easement by estoppel).
  5. An easement that is created by prescription is one that is created by continuous, open, and notorious (i.e., known) use of a property (e.g., if the owner of property B uses property A to build a canal or a pipeline to access a river adjacent to property A and does this for some extended period of time, then the owner of property B will have acquired an easement so to use property A).

These explanations are, of course, cursory and somewhat simplified, but they are sufficient for our purposes6.

An example before we proceed to the true point of this article:

Let us say that Mr. Adams and Mr. Barns are neighbors. Mr. Adams owns Plot A and Mr. Barns owns Plot B. These plots are adjacent. There is an outhouse on Plot A that is shared by the residents of Plot A and the residents of Plot B. This arrangement is long standing.

Mr. Adams dies and the property (Plot A) eventually comes into the hands of Mr. Cranmer. Mr. Cranmer does not much care for Mr. Barns; thus, Mr. Cranmer attempts to block access to the outhouse by erecting a fence between Plot A and Plot B.

Mr. Cranmer is in the wrong. Even in the absence of an express grant or reservation (method 1), an easement would exist due to implication (method 2). The scope of this easement would be the traversal of Plot A to reach the outhouse and the use of the outhouse itself (we are deliberately ignoring all other issues, e.g., duties, that could be relevant in this case).

Mr. Cranmer will be forced to remove the fence (or just add a gate), thus permitting Mr. Barns, and the other residents of Plot B, to resume their use of the shared outhouse.

Now that we have the necessary skeleton of our analogous area of the law, let us construct our actual analogy with regard to traditions.

Traditions as Easements

We will now employ our elements (4) and our methods of creation (5) from easements and apply them to traditions. As an easement must apply to real property (element 1), so a tradition must actually be adiaphoron. As an easement must be non-possessory (element 2), so a tradition must not be advanced as justifying or salvific. As an easement must be related to use (element 3), so a tradition must be long established or universal. As an easement must be specific and limited (element 4), so a tradition must be neither harmful nor contrary to the faith. Compiling, as it were, these into a proper thesis, we arrive at the following:

When a long-established or universal tradition is neither harmful nor contrary to the faith, such tradition is binding upon the churches and must be observed, because to do otherwise would be to sow needless chaos and dissension.

I have taken the liberty of adding the third clause (the subordinate clause beginning with “because”) as it helps by clarifying the right sense of the first two clauses. Before we turn to the analysis of adiaphora — when they may be or are required and when changing them is permissible and why —, we will address the methods by which they may be created.

As an easement may be created by express grant or reservation, so a tradition may be created deliberately. As an easement may be created by implication, so a tradition may be created by practice. As an easement may be created by necessity, so a tradition may be created by necessity. As an easement may be created by estoppel, so a tradition may be created by promise (typically from the pastorate to the sheep). As an easement may be created by prescription, so a tradition may be created by concession (usually extracted from the pastorate by the sheep).

Adiaphora as Requirement

At first blush, it may seem like the very concept of the adiaphoron would preclude it from ever being necessary or required, but this is simply not the case. Now, we must be careful to distinguish different senses of “necessary” or “required”7. What is meant by “required” is that the observation of the tradition in question cannot be neglected or abandoned without sin. This may (and perhaps should) make some readers uncomfortable8, but it will be adequately explained by the balance of the article. There are two distinct circumstances that must be covered with regard to this status of ‘required’ — under normal circumstances and during times of persecution.

Before proceeding to the balance of this part of the assessment, let us first ensure that we are all on the same page when it comes to precisely what an adiaphoron is; here is the definition:

a ceremony or a church rite which is neither commanded nor forbidden (in God’s Word)

Under Normal Circumstances

When the Church and Christians are not under active persecution, whether or not an adiaphoron is required is a simultaneously easier (in that there are no special considerations) and more difficult (in that a blanket answer is not possible) question. In essence, the fullness of the analysis must be run:

  1. Is the tradition in question long established or universal?
  2. Is the tradition in question harmful or contrary to the faith?
  3. Would modifying or abandoning the tradition in question sow needless chaos or needless dissension?

Each ‘step’ of this analysis has, in essence, two ‘prongs’. With the first step, we must assess the scope of the tradition along two axes — time and geographic scope. A tradition that has been established for a long time or has achieved something close to universal9 observance passes this step. With the second step, we must assess the nature of the tradition under two lenses — harmfulness and contrariness. A tradition that is neither harmful (e.g., a tradition that causes the sheep to doubt would be harmful) nor contrary (i.e., goes against Scriptural commands) to the faith passes this step. With the third step, we turn from the initial assessment of whether or not the tradition in question is required to whether or not the tradition in question may be altered (to include abandoning it, in the ‘extreme’ case). A modification that sows neither needless chaos nor needless dissent passes this step (more, infra).

During Times of Persecution

When the Church and Christians are under active persecution, the analysis becomes easier. No adiaphoron may be abandoned during times of persecution if the abandonment is in any way, shape, or form driven by the persecution itself in the sense that it seeks to accommodate Christian praxis to the demands of the persecutor. This does not include cases in which the modification or abandonment of an adiaphoron becomes necessary because of the consequences of persecution (e.g., if candles were to become unavailable due to persecution, ceasing to use them would not be violative of this rule).

The reason for this prohibition is simple: To modify, institute10, or abandon adiaphora under persecution (absent actual necessity) would be to give a false confession, because it would be to modify the practice of the faith under the demands of anti-Christian forces or authorities. There are many reasons for this (e.g., the persecutor or other observers may interpret the abandonment of certain elements of the practice of the faith under persecution as a black mark against the seriousness with which Christians hold the faith), but the core matter is that external, anti-Christian demands to alter the praxis of the faith must be rejected no less staunchly and zealously than would external, anti-Christian demands to alter the doctrine of the faith.

Under persecution, the adiaphoron is raised to tenet — to be held and defended as vigorously as any other. In defiance of the demands of a persecutor, the lighting of a candle, the singing of a particular hymn, or the wearing of a liturgical color may be no less a vigorous and public confession of the faith than would be the reading of Scripture or the declaration that Christ is Lord, God, Savior, and King. When the persecutor makes of us demands, we should hear the promise and the threat of Christ’s words echoing under the invitation of the persecutor:

“So everyone who acknowledges Me before men, I also will acknowledge before My Father Who is in Heaven, but whoever denies Me before men, I also will deny before My Father Who is in Heaven.”

— Matthew 10:32–33 (ESV)

It is alone the fool who believes that we can confess — or deny — Christ only with words and not with deeds. If the persecutor commands us not to light candles, then we light candles; if he commands us not to sing (certain) hymns, then we sing those hymns; and if he commands us not to wear certain colors, then we wear those colors.

The confession of a false sin is sacrifice to a false god; similarly, permitting a persecutor of the Church to set doctrine, dogma, policy, or praxis within the Church is denial of the true Head of the Church.

Permissibility of Changing Adiaphora

To say that adiaphora may become required does not mean that they cannot be modified (to include, at either extreme, introduction of new adiaphora or removal of existing ones). There are two possible circumstances under which adiaphora may be instituted, modified, or removed: due to necessity or with adequate warrant.

Due Necessity

There are times when it becomes necessary to institute, to modify, or to remove adiaphora. To be absolutely clear: “Necessity” in this case does not encompass avoiding persecution or anything similar; rather “necessity” means actual or absolute necessity (i.e., something that must be done). For instance, if organs were to become unavailable for some reason, then the modification of the Divine Service to remove organ music would be necessary (as there can be no organ music where there are no organs). The foregoing necessity is more often seen where a particular church is newer (and smaller) and thus has no organ.11 Another example would be changing a particular liturgical color should a certain color of cloth become unavailable.

To change adiaphora due to necessity is no sin, even if the observation of the adiaphora in question would be considered required.

With Adequate Warrant

Similarly, there are times when it is not absolutely necessary to change a particular adiaphoron, but there is adequate warrant for doing so. Even where there is no necessity, an adiaphoron may be modified when there is adequate warrant. For instance, if a particular color of cloth became prohibitively expensive, then it would be permissible to change a liturgical color to avoid that particular color of cloth. There is some level of practicality that goes into the assessment of adequate warrant. Typically, alternatives should be sought before a tradition is modified (e.g., if candles were to become prohibitively expensive, having members of the congregation make candles should be explored as an alternative), but alternatives are not always available. The language used in the Divine Service is, strictly speaking, adiaphoron — it not only may be changed to match the language understood by the individual congregants, but such change must be made because it is necessary for the congregation to understand what is being taught and thus there is adequate warrant12 for the change.

Of course, no modification of any tradition should be undertaken without adequate warrant — and ‘I would prefer’ is never adequate warrant, if it can even be considered warrant at all.

Discussion

There are many implications of the foregoing. I do not intend to explore them all in this article. However, I will explore one particularly salient implication in this discussion before concluding the article: The liturgy is binding.

Our God is, of course, a God of order and not of chaos — this is part of why the third step in the analysis — Would modifying or abandoning the tradition in question sow needless chaos or needless dissension? — exists. That the liturgy13 fulfills both the first and second steps of the analysis goes without saying; the liturgy is long established and universal14 and neither harmful nor contrary to the faith. Arguments against the liturgy are virtually always grounded in personal preference and, thus, should be summarily dismissed. Hence, let us focus on the third step: Does abandoning the liturgy sow needless chaos or needless dissension? The answer, categorically, is: Yes.

Far too often, those who reject the liturgy do not stop at mere rejection; they go further and proceed to denigrate the liturgy and even those who observe it — they become accusers of the brethren and attackers of the Church over what is, in its essence, adiaphoron. Due this alone, the liturgy would be binding upon the churches, but this is far from the only warrant or issue. Fundamentally, the liturgy is the order in the Church, at least with regard to her worship. The liturgy is the proper response to God’s command that everything be done “decently and in order” (1 Corinthians 14:40).

To abandon the liturgy is to place personal preference above good order in the Church; it is to sow needless dissension by dividing the body of Christ into competing or even warring sects; and it is to sow needless chaos by creating a discordant noise where before there was only unity and harmony. In theory, the liturgy is adiaphoron; in practice, the liturgy is binding upon the churches of God. Those who wish to abandon the liturgy are free to abandon the rest of the faith with it.

For the Lutheran reader, this is simply in accord with what our Confessions teach:

Augsburg Confession, Article XV
Of Usages in the Church they teach that those ought to be observed which may be observed without sin, and which are profitable unto tranquillity and good order in the Church, as particular holy days, festivals, and the like.
Apology of the Augsburg Confession, Article XV
In the Fifteenth Article they receive the first part, in which we say that such ecclesiastical rites are to be observed as can be observed without sin, and are of profit in the Church for tranquillity and good order.

Conclusion

The Christian faith, assuredly, is a matter of truth claims, but it is also a matter of practice. As the faith that produces no works is dead and therefore not a true, living faith, so the Christian who affirms chapter and verse but denies the practices of the Christian faith is no true Christian. We are no more free to select, as if at a buffet, the practices we personally prefer than we would be to do the same with doctrines. Certainly, it is not as egregious to abandon the liturgy as it would be to deny the divinity of Christ, but it is still a step on the path to apostasy. The goal should not be — is not — to be ‘minimally’ Christian.

Much more could be said on this topic, but this is neither the place nor the time. This article is the foundation of the matter — the groundwork upon which more can be built over time. If we are to be Christians, then we must be so in thought, word, and deed. Do not remove the fence built by your forefathers; do not move the ancient landmark; do not abandon the practice long established.

  1. Black’s Law Dictionary defines an “easement” as: “A right, privilege, or interest which one party has in the land of another, such as the right to cross A’s land to get to B’s house. It is a type of incorporeal hereditament and is nonpossessory, meaning it does not involve possession of the land itself but rather a right to use or control the land owned by another, or to prevent the landowner from using their land in a certain way.” ↩︎

  2. “Intellectual property”, so-called, falls under the umbrella of “personal property”. ↩︎

  3. For the purposes of this article, there is no need to continue to distinguish between ‘using’ property and merely ‘entering upon’ it. ↩︎

  4. For the sake of simplicity (and because this is decidedly not intended as a CLE or similar), we will be ignoring the various ways in which an easement may be terminated or destroyed. ↩︎

  5. This is not intended as a primer on property law and I am not teaching a property class, so we will not be delving into the niceties of the statute of frauds, et cetera. ↩︎

  6. They are arguably even sufficient as a very brief overview of this specific area of the law. ↩︎

  7. Going forward, I will drop “necessary” (which is already shorthand) and simply use “required” in most instances, but both should be kept in mind. ↩︎

  8. Because it seems to be creating novel sins. ↩︎

  9. n.b., “universal”, here, does not necessarily mean universal in the sense of applying to all churches; rather, universal, here, means that the practice is universal within some reasonable subset of the church (e.g., a national church). ↩︎

  10. In a very real sense, the introduction of new adiaphora under the demands of a persecutor is simply an extreme form of modification, but it does warrant separate statement. ↩︎

  11. If some wish to class this under “adequate warrant” instead of “necessity”, I have no objection. ↩︎

  12. In this particular case, the warrant actually rises to the level of compelling, not merely adequate warrant, which is to say that it compels the change, not merely makes it permissible. ↩︎

  13. I deliberately do not capitalize “liturgy” — even if it may be tempting to do so —, because it is and remains in its essential nature adiaphoron, even if it is also binding upon the churches. ↩︎

  14. To conclude that the liturgy is not universal because some have falsely (i.e., impermissibly) departed from it would be to reward the sinner for his sin or tantamount to permitting a thief to keep what he has stolen because of his claim of current possession. ↩︎