Book review: Law and Religion
Posted on 28th Nov 2011 in Reviews
Over the past decade the subject of law and religion has emerged as a discipline in its own right in law faculties. Russell Sandberg in his book Law and Religion has successfully taken it upon himself to define the boundaries of what he perceives to be the core material any student of law and religion needs to cover.
Sandberg provides a justification for the existence of law and religion as a distinct subject of study and sets out a framework which he fills in, chapter by chapter, as he first explains his terms, then moves through the historical development of the relationship between law and religion, on to a consideration of the various legal definitions of religion, the legal position of religious groups, religious freedom as a human right, discrimination on grounds of religion, religious offences, religion in schools, and religious law, concluding with a consideration of emerging trends and pressure points.
Sandberg’s work is complemented by the excellent online materials, the case database and other materials provided on the website of the Centre for Law and Religion at Cardiff University. Together with the useful comparative overview, provided in chapter 3, of the approach taken to the concept of religion within various areas of English law (charity law, human rights law and discrimination law), the book could prove of interest to practitioners as well as to law students.
In chapter 1 Sandberg provides a discussion of the various areas encompassed within the subject of law and religion. He identifies the study of law and religion as encompassing at least the study of “religion law”, that is “external temporal laws affecting religious individuals”, and “religious law”, that is “internal spiritual laws made by religious groups themselves”. He allows that law and religion also encompasses the study of the relationship between law and religion, although this is covered in a historical rather than a philosophical or theological context in his book.
The main focus of the book is on “religion law” in Britain (chapters 3 to 8), although an extensive definition of “religious law” is considered in chapter 9. The relationship between law and religion is considered in an historical overview in chapter 2. Chapter 4 sets out the legal position of the Church of England and compares this to the rules governing non-established groups. Sandberg identifies the ecclesiastical law of the Church of England as “a key part of religion law”.
In chapter 5 the book moves on to consider the effect of the incorporation of article 9 of the ECHR into domestic law and in chapter 6 considers the Equality Act 2010 and discrimination on grounds of religion or belief. The interaction of article 9 and the discrimination law provisions are considered followed by an examination of the law on religious exceptions.
Chapter 7 provides an historical overview of the old religious offences, focusing on the offence of blasphemy, moving on to consider the new offences including religious hatred and religiously aggravated offences. Chapter 8 provides not only an overview of the various religion laws affecting education but also considers the role of these laws in the light of societies changing attitude towards religion, the protection afford through international instruments to the rights of the child and other religion laws.
The book concludes by drawing together the strands of religion law discussed in the main body of the work identifying the increased regulation of religion as “juridification of religion” meaning that there is now, in place of tolerance, “prescriptive regulation of religion and the active promotion of religious liberty as a right” resulting in an increased need for judicial adjudication in this area.
Sandberg cleverly weaves together the threads of religion law over a breadth of subject areas providing a thought provoking thesis and an invaluable tool for the study of law and religion.
Given the importance of understanding the underlying philosophical and theological basis for action or decision-making in the formulation and practice of and adjudication upon the law, it would appear fundamental to the discipline of law and religion that consideration be given to the philosophical and theological issues raised within that discipline. To limit the subject to religion law, religious law and the study of the historical interaction between law and religion leaves scholars, the judiciary and practitioners alike without the necessary tools to understand and deal with the deeper fundamental issues that arise.
Moreover, although the book deals with “religious law”, ie non-Christian religion, in chapter 9 and refers to important texts on comparative religion, it is not in itself a study in comparative law of religion.
With the emergence of the study of law and religion as a distinct discipline, a number of universities in the United Kingdom either have research centers or run undergraduate or masters degree courses in the subject (Regents Park College Oxford, LSE, Bristol, Durham and Cardiff, Oxford Brookes, to name a few).
One such course taught at masters degree level, “The Mission of Justice and The Theology of Law”, by Dr David McIlroy, barrister, can be taken at Spurgeon’s College, London. This course approaches the subject from within the Christian tradition and provides an in depth consideration of the application of Trinitarian theology to law, moving on to consider a theological approach to natural law, mosaic law and human rights, followed by a consideration of justice mission. The student then examines some key theologians who have influenced thinking about law (Augustine, Acquinas, Luther, Calvin and the Anabaptists), finally the course covers the role of government, legal philosophy and the church and the state. Dr McIlroy provides excellent course notes together with extensive reading lists to enable students to pursue areas of particular interest.
Even those who would exclude religious considerations from the public square and who would argue that it is possible to make policy decisions without reference to religion have to recognize that laws are necessarily based on decisions about what is right and wrong. If humankind is to be the reference point or moral compass for deciding what is right and what is wrong right, and if there is to be no independent external plumb line against which to measure our laws, society is in danger of drifting way off course. Without reference to an external source for right and wrong any group of individuals can decide by a majority to pass any law they deem appropriate, what is “right” either becomes a utilitarian concept (a decision about what is in the best interests of the majority) or it becomes the policy choice of those who hold power and authority and who have the ability to enforce their decisions. Those who study the discipline of law and religion can observe for themselves how society legislates and adjudicates in respect of religion; those who study law and theology can decide for themselves where to locate the moral compass so that the formulation and adjudication of law is carried out in an effective and appropriate way so as to provide the optimum conditions for citizens within its jurisdiction. At a time when it is becoming popular to ignore or be afraid of public discourse on religion and on theological and ethical issues, it is refreshing to see several universities include the subject of law and religion in their curriculum at least one include the subject of law and theology. These are subjects that provide a vital undergirding and framework to those engrossed in the study of the technicalities of law.
Law Reporter, ICLR;
Associate Law Lecturer, Open University;
Case Notes editor, Oxford Journal of Law and Religion
RUSSELL SANDBERG: Law and Religion
Cambridge University Press (hardback £55.00) ISBN 978-1-107-00379-8 (paperback £19.99) ISBN 978-0-521-17718-4 (kindle edition £19.99)