The Religion of Law

Race, Citizenship and Children's Belonging

S. Jivraj

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9781137029270
• eBook ISBN: 9781137029287
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

How is religion, particularly non-Christianness, conceptualised and represented in English law? What is the relationship between religion, race, ethnicity and culture in these conceptualisations? What might be the socio-political effects of conceptualising religion in particular ways? This book addresses these key questions in two areas of law relating to children.The first case study focuses on child welfare cases and reveals how the boundaries between race and theological notions of religion as belief and practice are blurred. Non-Christians are also often perceived as uncivilized but also, at times, racial otherness can be erased and assimilated. The second examines religion in education and the increasing focus on 'common values'. It demonstrates how non-Christian faith schools are deemed as in need of regulation, while Christian schools are the benchmark of good citizenship. In addition, values discourse and citizenship education provide a means to 'de-racialise' non-Christian children in the ongoing construction of the nation.Central to this analysis is a focus on religion as a socio-political, contingent, fluid and invented concept.

1

Conceptualizing Law’s Religion: Socio-Legal Perspectives

Introduction

In this chapter, I first critically examine some of the key perspectives from within socio-legal literature around religion, focusing on how they come to conceptualize law’s religion in predominantly onto-theological terms. The impetus for doing so is that this scholarship has come to be particularly influential in debates impacting upon and shaping juridical developments on religious freedom, as well as other law-and-religion (LAR) issues in Britain and in relation to the European Union (EU) and the European Convention on Human Rights (ECHR) (Bradney, 1993; Hamilton, 1995; Ahdar, 2000a; Oliver et al., 2000; O’Dair and Lewis, 2001; Edge, 2002; Eekelaar, 2004; Ahdar and Leigh, 2005; Barzilai, 2007; Ghanea et al., 2007; Vickers, 2008; Bradney, 2009).¹ Moreover, as I discuss later in my case study chapters, the role of religion, particularly the issue of religious/civic values in education policy within Britain and northern Europe, is increasingly being influenced by public policy thinkers and scholars from the United States. Whilst ‘character education’ has a long history in England, for example, there is clearly a resurgence of this values discourse within current socio-legal and juridical thinking more broadly, where Christian values are believed to play a significant role in engendering children, in particular, with a greater sense of citizenship and community.

In examining the concept of religion in this literature, I specifically focus on perspectives that explore issues of religious freedom with regard to children, although there is relatively little analysis of cases involving non-christianness within this scholarship. My analysis in this chapter, therefore, covers a broader scope than just child welfare and education law, particularly as I argue that there is also an urgent need to attend to juridical conceptualizations of religion beyond areas of law relating to children. The LAR literature can also be viewed as broadly being divided into two perspectives: one being concerned with the rights of ethnic minority religion, what I refer to as non-christianness; and the other from a Christian perspective, arguing against an alleged erosion of religious autonomy for Christian institutions (see, for example, Ahdar and Leigh, 2005). My key argument in this chapter is that this literature tends to prioritize an onto-theological paradigm of religion, namely, as belief in a transcendent being, and ritual practice as manifestation of that belief. I make this argument despite there being some acknowledgment by some scholars that legal definitions of religion are increasingly difficult to pin down or that religion might be understood in more complex terms as part of a person’s cultural/ethnic identity (Bradney, 1993; Edge, 2000b; O’Dair and Lewis, 2001; Ahdar and Leigh, 2005; Vickers, 2008; Bradney, 2009).

I also argue that in largely failing to challenge this onto-theological notion of religion, the LAR literature marginalizes how law’s religion might come into being. I draw on the scholarship from cultural studies, anthropology and religious studies discussed in the next chapter in order to undertake this critique. Although, the socio-legal perspectives I discuss in this chapter come from an analysis of human rights, anti-discrimination and education law and, therefore, are partly a response to them, they are nonetheless not just a mirroring of juridical discourse. They are themselves working to influence the parameters of how religion should or might otherwise be protected through law (Bradney, 1993; Edge, 2000b; O’Dair and Lewis, 2001; Ahdar and Leigh, 2005; Knights, 2007; Vickers, 2008; Bradney, 2009). It is for this reason that I bring to bear upon the LAR literature what I refer to as critical perspectives on religion and race. I therefore suggest that adopting a critical study of law’s religion is necessary alongside working within a liberal (rights) framework to come up with normative juridical solutions to the various problems supposedly raised by the issue of religion.

Religion conceptualized as theology

As Neil Addison puts it, the question of what is religion, is one for theologians, however, the question of whether ‘a belief constitutes a religion, philosophy or political opinion’ can be a question for lawyers (2007, p. 1). Whilst putting the validity of Addison’s assertion to one side (an issue to which I will return later), it is important to note here that a number of LAR scholars highlight the difficulties of having a legal definition of religion (Ahdar and Leigh, 2005, p. 110; Edge, 2006, p. 28; Vickers, 2008, p. 13; see also in relation to US constitutional law: Freeman, 1983; Greenwalt, 1984; and, more generally, Sadurski, 1989; Hall, 1997). These scholars nonetheless agree that there should be some definition, despite the fact that courts are hesitant to come up with an all-encompassing one (Ahdar and Leigh, 2005, p. 110; Edge, 2006, p. 28; Vickers, 2008, p. 13). Lucy Vickers, for example, states that a belief in God may unite the monotheistic faiths of Judaism, Islam and Christianity but would not include polytheistic faiths, such as Hinduism, or non-theistic beliefs, such as Buddhism, despite these latter two being recognized as ‘world religions’. Part of the difficulty for these scholars is in relation to less ‘well-known religions’ such as Paganism, new religions or those adhered to by few followers, and moreover, the extent to which beliefs such as veganism, pacifism, atheism or humanism might be included (Vickers, 2008, p. 13; Cumper, 1995; Ahdar and Leigh, 2005; Edge, 2006, pp. 27–33; see also Edge, 2006, and Vickers, 2008, for a detailed discussion of whether these beliefs are protected under freedom of religion Article 9). Although there is no definition in international law, Article 9 of the ECHR refers to religion or belief which, according to Vickers, means that the European Court of Human Rights does not have to distinguish what might constitute religion as opposed to belief (2008, p. 14). The Universal Declaration of Human Rights (UDHR) definition is explicitly broader still, including theistic, non-theistic and atheistic beliefs (UN Human Rights Committee, 1994). However, as Vickers notes from the cases X, Y and Z v UK (1982) 31 D&R 50 and Campbell and Cosans v UK (1982) 4 EHRR 293, the overlap between religion and belief is that the belief in question needs to ‘attain a certain level of cogency, seriousness, cohesion and importance’ (discussed in Vickers, 2008, p. 14). This requirement has also been brought up in relation to other belief systems, such as Druidism, in, for example, Chappel v UK (1988) 10 EHRR 510 and Pendragon v UK (1998) EHRR CD 179 (Vickers, 2008, p. 14).

Similarly, the Employment Equality (Religion and Belief) Regulations 2003, now covered by the Equality Act 2010, applied to religion or philosophical belief, so that humanism and atheism could be protected despite their non-religious content (Vickers, 2008, p. 15). For Vickers, this development, or ‘inclusion’, does not avoid the difficulty of definition, but rather merely shifts or widens the parameters of the problematic, particularly in relation to, for example, pacifism (Arrowsmith v UK (1978) 19 D&R 5) or veganism (H v UK (1993) 16 EHRR CD 44) (Vickers, 2008, p. 15). Nevertheless, these scholars agree that not having any kind of definition or guiding principles leaves a court in a ‘vacuum’, in turn making it difficult (for lawyers and claimants) to predict how a court will make its decision (Cumper, 1995; Ahdar and Leigh, 2005; Edge, 2006, pp. 27–33; Vickers, 2008).

To that end, Vickers and Ahdar and Leigh discuss two or three possible approaches that might be taken towards formulating a legal definition of religion (Vickers, 2008, pp. 15–22; Ahdar and Leigh, 2005, pp. 115–25). These would be firstly, to adopt a ‘content based definition’ for religion based on core beliefs; secondly, to reason ‘new’ or potential religions by analogy with those religions which are already universally recognized; and, thirdly, to come up with a list of ‘key indicators of religion’ against which to test those that are less well known (Vickers, 2008). The final approach Vickers suggests is to take a purposive approach in seeking to protect religion, and from there work towards a purposive definition. However, Vickers, as well as Ahdar and Leigh, also discusses the (de)merits of the various approaches (Vickers, 2008; see also Edge, 2006, pp. 27–32). It is not my intention to rehearse those discussions in any detail here, rather, I merely wish to highlight the unstable way in which religion circulates in law, to the point that LAR scholars more or less agree that there should be some way to mitigating the situation where there is a vacuum for judges by having a set of key indicators of what religion might be. Thus, for example, summarizing the prevalent position within LAR scholarship, Vickers concludes that:

… it is the belief in some form of external reality, and the belief that this has some link to man’s place in the world, that is most important in helping adherents makes sense of the unknowable, and it is thus these elements that are the most important (Vickers, 2008, p. 22 drawing on Macklem, 2000).

This configuration does reflect the definition of religion set out in the Australian High Court case ruling on Scientology: Church of the New Faith v Commission of Pay-roll Tax (Victoria) [1982–83] 154 CLR 120 as:

… a belief that reality extends beyond that which is capable of perception by the senses; that the ideas relate to man’s nature and place in the universe and his relation to things supernatural; that the ideas are accepted by adherents as requiring or encouraging themselves to observe particular standards or codes of conduct, or to participate in specific practices having supernatural significance; that adherents constitute an identifiable group (even if loosely knit); and that adherents themselves see the ideas as religious (per Wilson and Dean JJ, p. 174, discussed in Edge, 2006, p. 31; Vickers, 2008, p. 19).

Defined in this way, protection of religion and belief is not limited to those belief systems that have already been defined and protected in the past, but is ‘open to development as human thought develops’ (Vickers, 2008, p. 22; see also Cumper, 1995; Macklem, 2000; Ahdar and Leigh, 2005). Defining religion in this way avoids under-inclusiveness, but is also only available to those beliefs which are sufficiently serious to the individual to affect his or her sense of identity and understanding of the world (Vickers, 2008, p. 22). It seems then that there are two elements, ‘belief in some form of external reality, and the belief that this has some link to man’s place in the world’, that are core in giving religion its value within law, not whether an adherent claims to have a ‘religious’ identity which may be less important (p. 22). Belief – separate from religion – has also come to be understood as similar to religious belief and, through analogy, in terms of being a philosophy of life about ‘man’s place in the world’ (p. 22). Although there is no view on a clear legal definition of religion amongst these LAR scholars, there does seem to be a prioritizing of ‘belief’ as a key element whether that be in a God or not, but nonetheless in some kind of transcendent, or ‘irrational’, other-worldliness (Macklem, 2000). As Vickers highlights, drawing on Timothy Macklem (2000):

… the function and purpose of protections of religious beliefs within the legal system is that protection enables non-rational views about the nature of the world, views that have an effect on some individuals’ ability to make sense of the world, to be protected via otherwise rational system. Other irrational views, about the importance of football or country dancing do not qualify for the same protection. (2008, p. 21)

It follows, then, that attached to belief are manifestations of those beliefs, which, for example, may include worship or other symbolic or ritualistic practices; these outward expressions of an ‘inner’ belief are viewed as a critical part of the (legal) concept of religion (Bradney, 1993; Edge, 2006; Vickers, 2008; Bradney, 2009).

The work of Anthony Bradney, another key LAR scholar, particularly in the emergence of the field with his book Religion, Rights and Laws (1993), also foregrounds a theological conceptualization of religion:

Religion is both belief and practice. The two are inseparable. To say ‘I adhere to a particular faith’ is also to say I believe I should follow the precepts of that faith. Believers may fail in their practice. However, they will account that failure blameworthy. What they cannot do is deny the necessity of such practice. (1993, p. 5)

Bradney is asserting that religion is both belief and practice as part of his critique of the way human rights law separates the two, namely: on the one hand, human rights jurisprudence acknowledges an individual’s right to belief; but, on the other hand, it does not necessarily protect the right to manifest that belief (1993, p. 5; see also Poulter, 1998; Ahdar and Leigh, 2005 who take a similar view). For Bradney, manifestations of religious belief – that might require legal protection or recognition – would include the observance of religious dress or freedom to worship whilst at work, non-Christian marriage and custody rules, and more state-funded non-Christian faith schools (1993). His conceptualization of ‘religion’ is very much tethered to the rules and rituals set down by theological dogma and/or clerical ‘authorities’ and to the practice of these rules and rituals. This view of religion is also apparent in relation to work on non-christianness, which I discuss further below (Poulter, 1986; 1998; Menski, 2008).

Religion conceptualized as identity

In a later article, Bradney expands further on his conceptualization of religious belief, particularly what he refers to as ‘obdurate’ belief (2000, p. 90). This is where ‘religion is the key to their [people’s] own sense of their self-identity. For such individuals religion is central to their lives, determining most or all respects.’ (p. 90) His reasoning for this view is that the believer’s faith is ‘timeless and boundless’ meaning that their identity and actions ‘are tied to what is, for them, a pre-ordained system of values and commitments’ (p. 91). Both Bradney and Macklem view this kind of belief as a ‘polar opposite’ to modernity and rationality in contemporary British society (Bradney, 2000, p. 91; Macklem, 2000). The implication of this argument, that religious belief is pre-modern and irrational, is a point I will come back to below in relation to the racialization of religion. The point I wish to emphasize here is that Bradney, like the LAR scholars discussed above, also highlights the other-worldliness or extra-temporal dimension of religious belief or faith, namely its transcendental nature. Whilst of course this conception is clearly linked to a number of legal claims within human rights law, there is nevertheless barely any interrogation of the predominance of this conceptualization of religion and how it has come about. Rather it is taken for granted as an almost self-evident, cross-cutting feature of ‘religion’ which –- as I argue in the next chapter – is a somewhat partial, decontextualized and ahistorical view of how the modern concept of religion has come into being.

Another related conceptualization of religion in the LAR scholarship already mentioned above is that of identity. In his later book, Law and Faith in a Sceptical Age (2009), Bradney is less hopeful about the possibilities of a liberal rights framework being able to accommodate the religious freedom of the ‘obdurate’ believer for whom ‘religion is the most important part of their sense of identity’ (2009, p. 1). Rex Ahdar and Ian Leigh (2005) put forward a similar view to Bradney’s, but they make their argument from an explicitly Christian perspective which is significant to their notion of identity and is also related to a sense of belonging within a (church-based) community. Similarly, for Bradney, ‘obdurate’ belief is more apparent in religious communities that he claims are relatively new to Britain, such as Sikhs, Hindus and Muslims (Bradney, 2000, p. 90; and 1993). This conceptualization of religion, namely one that is tethered to community and identity, is not really explicitly elaborated upon and yet, as I discuss in the next chapter, is critical to understanding contemporary discourse on religion. Rather, Bradney’s focus returns to the onto-theological albeit in a more complex and nuanced way:

Religiosity, individual religious or spiritual sentiments, still has a place, albeit usually a limited place, in the lives of the majority of the population, but belief in a religion, a commitment to an identifiable institutional structure with its own tenets and precepts that believers undertake to obey, does not. (Bradney, 2009, p. 4)

There is a seeming decoupling of ‘religiosity’ and ‘spiritual sentiments’ from belief and, indeed, an acknowledgment that religion seems to cover more than just belief and practice, namely a type of personal religiosity emerging from individual experience as well as religious doctrine (Bradney, 2009, p. 4, citing the work of Yip, 2003, p. 143). However, for Bradney, ‘tenets and precepts’, namely, theology, are still crucial elements to his conceptualization (2009, p. 4). In this latest book, again, his examples of religious manifestation – in relation to Christianity and non-christianness – focus on worship, institutionalized religion (organizations) and values that emanate from faith-based doctrine (2009, p. 4; see also Edge, 2002). Bradney discusses personal law systems, also derived from these doctrines or sacred scripts and the religious systems of law to which they have given rise. He further discusses the possibilities and imperatives for the recognition of marriage, divorce and other matters, such as those relating to children, within a multicultural or ‘transformative accommodation’ framework (Bradney, 2009, pp. 44 and 55). This concept, taken from the work of Shachar (2001, p. 117), is put forward as a legal framework that would ‘accommodate the most vulnerable constituents’ within society (Bradney, 2009, p. 51; see also Poulter, 1998; Edge, 2002; Menski, 2008). As I will discuss in the next chapter and throughout the rest of the book, there are a number of racialized problematics that are associated with the ‘accommodation’ of those that come to be labelled and categorized as vulnerable, particularly non-Christian minority populations within Western liberal states. However, the point I wish to highlight here is how Bradney, indicative of key thinking within socio-legal studies on religion, stops short of really probing at an onto-theological understanding of religion.

One area in which there is perhaps a little more exploration of how personal religiosity might emerge from personal cultural experience as well as religious doctrine is in relation to child welfare cases. Bradney argues that generally courts are not ‘comfortable with strong religious beli...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Table of Cases
• Table of Legislation
• Abbreviations
• Acknowledgments
• Introduction
• 1 Conceptualizing Law’s Religion: Socio-Legal Perspectives
• 2 Interrogating Law’s Religion: Critical Perspectives
• 3 Non-Christianness in Adoption and Child Welfare Cases: Prioritizing Racialized Religion
• 4 Orientalism, Belonging and Nationhood
• 5 Religion in Education: Christian Legacy, Orientalist Positioning and Common Values
• 6 Faith in Schools: Racialized Religion, Community Cohesion and belonging
• Conclusion
• Bibliography
• Index