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DISKUS
Vol. 8 (2007)
http://www.basr.ac.uk/diskus/diskus8/sandberg.htm
RELIGION AND MORALITY: A SOCIO-LEGAL APPROACH
Russell Sandberg,
Centre for Law and Religion,
Cardiff Law School,
Cardiff University, UK
Email: sandbergr@cardiff.ac.uk
Abstract
This exploratory examination seeks to understand the relationship between ‘religion’, ‘law’ and ‘morality’ by using a socio-legal approach. The paper will outline theoretical positions concerning the relationship between religion and morality with reference to social theory in order to explore how the relationship has changed over time. This picture will then be tested by reference to law; two legal case studies will be employed: criminal law and charity law. In both areas, there have been significant changes in recent times and this paper will examine how these changes have affected the relationship between ‘religion’, ‘morality’ and ‘law’. The paper will conclude by outlining the benefits of this innovative socio-legal approach, arguing that the study of the relationship between religion, law and society requires a ‘sociology of law and religion’.
INTRODUCTION
For Lord Denning, the most colourful, influential and renowned judge of modern times, the relationship between ‘religion’, ‘morality’ and ‘law’ was clear. <1> He once commented that, “Without religion, no morality; without morality, no law.” <2>
‘Religion’ and ‘morality’ were entwined as were ‘morality’ and ‘law’. However, both links of Denning’s chain have proved to be contentious with much attention being accorded to the relationship between ‘religion’ and ‘morality’ and that between ‘morality’ and the ‘law’.
This article seeks to re-examine the relationship between ‘religion’, ‘morality’ and ‘law’ by using a socio-legal approach. <3> Using social theory, I will propose a hypothesis concerning the relationship between ‘religion’ and ‘morality’ which I will then test by reference to ‘law’, using two legal case studies, which focus on criminal law and charity law. <4> This innovative multidisciplinary approach seeks to understand the relationship between ‘religion’, ‘morality’ and ‘law’ in the twenty-first century: are the links in the chain identified by Lord Denning still entwined or has the chain collapsed completely?
RELIGION AND MORALITY: THREE MODELS
Before juxtaposing the sociological theories with the legal evidence, it will be useful to rehearse briefly the three models that explain how religion and morality can be related. A distinction may be drawn between three sorts of reason: autonomy, heteronomy and theonomy. <5> Autonomous reason is independent thinking unaffected by external ideas. According to this view, the relationship between internal ‘morality’ and external ‘religion’ is weak: ‘morality’ is based upon reason alone, without any reference to religious ideas. Any similarity in the values shared with a particular religion is purely coincidental. In complete contrast, heteronomous reason is completely conditioned by external factors. This view may see ‘morality’ as deriving from external religious and other influences, stressing the teaching role of the Church and its internal rules and laws (for example, the Roman Catholic magisterium). <6> Theonomy links together autonomy and heteronomy by the inner realisation that God is the common source of inspiration and knowledge: as Paul Tillich noted, “Autonomy and heteronomy are grounded in theonomy, and each goes astray when their theonomous unity is broken”. <7> This view sees ‘morality’ and ‘religion’ as having a common divine source.
It is therefore possible to draw a sharp dichotomy: either ‘religion’ and ‘morality’ are interwoven or they are separate. A spectrum may be identified illustrating the extent to which ‘morality’ depends upon ‘religion’. This article seeks to explore where contemporary British society is positioned on this spectrum and whether that position has changed over the last century. First, a sociological hypothesis will be proposed and secondly, legal evidence will be employed to verify or refute this hypothesis.
THE SOCIOLOGICAL HYPOTHESIS
Social cohesion is a central concern for social theorists. <8> It follows that sociologists should be interested in questioning the extent to which ‘religion’ and ‘morality’ are interwoven, whether this relationship has changed and what the consequences of this will be in terms of social cohesion. These questions were implicit in the work of the ‘classic’ social theorists, the nineteenth century thinkers who considered religion to be an important factor in the maintenance of social cohesion. <9> For Durkheim, religion was “something eminently collective”, linking people together in communities providing ‘social solidarity’; <10> it was the interwoven state of public morality and ‘religion’ that allowed society to function. <11> Weber described how it was the moral obligations of ‘religion’ that helped capitalism to flourish: Calvinistic Protestantism allowed capitalism to develop by attaching a great importance to work. <12> For Marx, ‘religion’ served an ideological function<13>: as Marx put it, “The religious world is but the reflex of the real world”<14>: the masses suffered from false consciousness, and religious-based morality, aided the capitalist in disabling the workers from realising their exploitation, allowing the status quo to continue. In their different ways, Marx, Durkheim and Weber pointed to the social effects of religion: the way in which it brought people together. Religion was a moral force. Public morality had its roots in the Christian religion that was dominant in the European context. Their views differed in relation to whether this was a good thing.
However, although some modern sociologists of religion also recognise how religion and morality are interwoven, <15> such a neat conclusion is controversial. Although there is some consensus surrounding their historical association, there is contention regarding whether this relationship has changed. The founding fathers of sociology – Marx, Durkheim and Weber – all accepted the enlightenment thesis that religion was in decline. As RolandRobertson noted, “Weber and Durkheim were very much preoccupied with the question of how society would manage without religion”.<16> Some modern sociologists have explained how the religious basis for society has become dismantled . <17> An example can be found in the work of Ralph Fevre’s work on The Demoralization of Western Culture. <18> For Fevre, Western culture has witnessed a process of ‘demoralization’ whereby ‘morality’ has been removed from the lives of individuals and from culture as a whole. Absolute distinctions between what is right and what is wrong no longer exist. There is widespread confusion. Fevre contends that ‘demoralization’ has resulted from an over-reliance upon common sense, which he sees as the method whereby we act solely upon reason and upon what we know as opposed to notions of trust and faith. Common sense rationality has become the universal guiding principle, replacing religion. Indeed, as Fevre puts it, to be religious “now requires a positive effort of submission where it used to require superhuman exertion to escape from such constraints”. <20>
Indeed, although not all sociologists accept Fevre’s notion that society has become demoralised, the decline of ‘religion’ as the source of public morality has become received wisdom in the social sciences. Although the reliance on the enlightenment narrative has been critiqued by postmodernist thinkers and those outside the social scientific academy, the basic contention that ‘religion’ can no longer provide the main source of ‘morality’ is rarely contested. For example, the historian Callum Brown in The Death of Christian Britain is critical of the dating of secularisation, which he claims occurred as late as the 1960s, but does not challenge the claim that secularisation has occurred and that the role of the Christian religion in the moral sphere has shifted from being central to being peripheral. <21>
From this brief survey of sociological writings on ‘religion’ and social cohesion, it is possible to tease out a broad hypothesis. <22> It may be said that sociological writings reflect the hypothesis that in the West whilst previously ‘religion’ and ‘morality’ were intertwined to the extent that ‘religion’ played an important role in providing social cohesion, during the modern era the influence of ‘religion’ has declined to the extent that it is no longer the main source of public morality.
LAW AND MORALITY
The employment of social theory to provide a hypothesis regarding the relationship between ‘religion’ and ‘morality’ can easily be justified given the centrality of social cohesion to sociology and the importance of the sociology of religion as a sociological sub discipline. However, the rationale behind the use of ‘law’ as a means of testing the sociological hypothesis is less obvious. It is therefore wise to pause to understand why reference should be made to ‘law’ and to determine the relationship between ‘law’ and ‘morality’.
There is a heated debate in legal theory concerning the relationship between ‘law’ and ‘morality’: this discussion involves two questions, the first concerns the extent to which ‘morality’ depends upon ‘law’, the second concerns the extent to which ‘law’ depends upon ‘morality’. <23>
In addressing the first question, Honorè asserts that the relationship can be seen as “an outline form in which details are missing”: ‘morality’ provides the outline, ‘law’ fills the gaps. <24> Morality depends upon law for its enforcement: if something is immoral, it does not necessarily follow that it is illegal and vice versa. <25> This is eloquently iterated in the work of the Austrian legal theorist Hans Kelsen who pointed out that law can be distinguished from other social or moral rules in that laws are compulsory and result in sanctions if they are broken. <26> For Kelsen, legal norms may also be distinguished from religious norms in that although religious norms are often accompanied by a sanction, that sanction is not socially-recognized but is an act of “superhuman authority”. <27>
In addressing the second question, scholars have addressed two separate questions, namely: (1) does ‘law’ have to be ‘moral’ to be a ‘law’? And (2) to what extent, if any, should ‘law’ enforce ‘morality’? <28> The first of these sub-questions is responsible for one of the major distinctions in legal theory: that between the natural law and the positivist schools. Although these schools embrace a plethora of different theoretical traditions, the basic conceptual difference lies in the fact that positivist theories see the status of ‘law’ as depending upon the fact that it has been laid down in a certain way recognised by the legal system, while natural law theorists argue, to varying extents, that ‘law’ depends on ‘morality’ for its authority . <29>. The second sub-question has been debated in various contexts over the centuries, <30> most recently following the publication of the Wolfenden Report in 1957, <31> and concerns the role, if any, that morality should have in determining what conduct is classed as criminal. Two views emerged: the Devlin view that the legislature was entitled to outlaw behaviour that is generally condemned as immoral on the grounds that such conduct may be likened to treason in that it threatens the continued existence of social cohesion; <32> and the Hart view that immorality alone was not sufficient: law should not be used for prohibiting harm suffered by a person who is offended simply by knowing about other people’s conduct. <33>
Although these debates have revealed no single answer, they nevertheless provide a rationale for the use of legal evidence in an examination of the relationship between ‘religion’ and ‘morality’. It is clear that there is a connection between ‘law’ and ‘morality’ and that ‘law’ exercises a social function in the enforcement of ‘morality’. The question of what ‘morality’ is enforced, explicitly or implicitly in ‘law’ and whether this changes over time is clearly of sociological interest. The following sections seek to use evidence of legal change to test the sociological hypothesis outlined earlier: that the historical association between religion and morality has declined to the extent that it is no longer the main source of public morality. Before examining this by means of two case studies (one focussing on criminal law, the other on charity law), a general legal picture will be painted.
THE LEGAL EVIDENCE
It is clear that, in the eyes of the law, there has been a historical connection between ‘religion’ in the form of Christianity and ‘morality’. Historically, it has been true to say that the extent that the law embodies public morality, it embodies Christian morality. One of the clearest lessons from English legal history is the large extent to which the fingerprints on the developing law belonged to Christians. <34> Many Christian influences on the law remain clear <35> and Church and State remain linked: the courts and law of the Church of England are part of the State <36> and Judges have exclaimed that “Christianity is part of the law of the land”. <37>
Furthermore, there is legal evidence to support the sociological hypothesis that this historical interconnection has become frayed. The notion that Christianity is the root of ‘morality’ seems inconceivable in an age of religious plurality. Indeed, legal evidence of a divorce of ‘religion’ and ‘morality’ may be found in human rights laws, which recognise that religious liberty can be limited in the interests of public morality. Article 9 of the European Convention on Human Rights provides several grounds by which States may limit the individual’s right to manifest their religion or belief and one such ground is the interest of ‘public morality’. This implies that ‘public morality’ is now separate from ‘religion’: the individual’s exercise of ‘religion’ may be curbed by ‘public morality’.<38> While the law historically reflected the interwoven nature of ‘religion’ and ‘morality’, now it presents them as separate to the extent that the state can justify interfering with an individual’s right to practise ‘religion’ on the grounds of ‘public morality’.
However, a meaningful analysis needs to delve deeper than this first impression. Two case studies will be employed to show how ‘law’ has recognised the relationship between ‘religion’ and ‘morality’ and whether legal changes reveal that the relationship between ‘religion’ and ‘morality’ has changed. Criminal law and charity law, two important areas concerning religion which have undergone change as a result of legislation introduced in the 2005/2006 session of Parliament, will be examined as a means of testing the sociological hypothesis, namely that despite their historical marriage, the modern era has witnessed the divorce of ‘religion’ and ‘morality’: the influence of ‘religion’ has declined to the extent that it is no longer the main source of ‘public morality’.
CASE STUDY 1: CRIMINAL LAW <39>
Religion interacts with criminal law in several ways. <40> For example, in England and Wales, although religious exemptions have been created from specific crimes, <41> there is no general defence of carrying out divine instructions. <42> The criminal law also enables and constrains religious identities by means of public order legislation. The English law of blasphemy is the most well-known example of this.
The legal protection of blasphemy in England and Wales dates back many centuries.
Originally, the law protected the sanctity of religious beliefs since those religious beliefs were regarded as being at the heart of society. In one of the first cases before a secular court in 1676, <43> the Chief Justice held that calling Jesus Christ a ‘bastard’ was “not only an offence to God and to religion, but a crime against the laws, state and Government”. He held that “to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the Laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law”.
A crime against religion was thus a crime against social order. The House of Lords Select Committee on Religious Offences (2003) commented that: “Faith was seen to be the root of society’s political and moral behaviour. Therefore, to challenge that faith or to offend against it was to seriously threaten the very fabric of political and moral society and had to be punished severely.” <44> The law of blasphemy was thus a textbook example of how the law reflected Christian morality; the public order offence that protected Christian beliefs from offensive attacks on the basis that
Christian values underpinned the law.
The law of blasphemy still exists. Under the common law, it is a criminal offence to publish blasphemous material in any form, written, verbal or performed. <45> To be blasphemous, the content of the material must be in conflict with the tenets of the Church of England. <46> The material must be couched in indecent or offensive terms likely to shock and outrage the feelings of the general body of Church of England believers: <47> the “offence of blasphemy does not protect religious beliefs as such. Rather it is concerned with attacks on those beliefs expressed in highly offensive ways”. <48> The defendant must have intended to publish the material complained of but there need not be an intention to blaspheme: <49> “all that matters is whether or not one did in fact publish the material that is the subject of prosecution”. <50>
However, the law is seldom prosecuted: after 1922, there was no reported case on blasphemy for almost sixty years. <51> Writing in 1949, Lord Denning confidentially stated that “the offence of blasphemy is a dead letter” <52> Although Mary Whitehouse successfully revived the offence in 1979, succeeding in bringing a public prosecution against the editor and publisher of Gay News, who had published with an illustration a poem, ‘The Love That Dares to Speak its Name’, by James Kirkup describing acts of fellatio and sodomy committed on Christ’s body immediately after his death, <53> there has been no successful prosecution since. <54> However, the law has also been enforced de facto by the decision-making of public bodies: for example, the British Board of Film Classification has refused to grant films a certificate on the ground that its content was blasphemous <55>
Whilst blasphemy laws fell into disuse, recent years have witnessed the piecemeal development of a number of public order offences which have been used to regulate religion. This public order legislation has been used to prosecute a number of people and activities, including displaying a poster showing events of 9/11 and the words ‘Islam out of Britain’ <56>, holding a placard against homosexuality and stating that ‘Jesus is Lord’<57>, and an individual who continually harassed Mormon missionaries and churches <58>. Since 2001, English law has recognised that the sentence for specific crimes may be increased if that crime is racially or religiously aggravated. <59> This applies to the law on assault <60>, criminal damage <61>, public order offences <62> and offences under the Protection from Harassment Act 1997 <63>
The most specific and most well-known piece of public order legislation affecting religion is the Racial and Religious Hatred Act 2006. <64> The Act creates numerous criminal offences protecting groups of believers from being threatened in a way that is defined by reference to religious belief or lack of religious belief. However, contrary to Government intentions, a prosecution can only be brought if the defendant intended to stir up religious hatred. <65> Moreover, a freedom of speech clause was included in the final Act. <66> These changes to the Act have decreased the likelihood of a successful prosecution under the Act
A conclusion could thus be made that the modern public order legislation, in general, and the Racial and Religious Hatred Act 2006, in particular, suggests a weakening of the connection between religion and morality in the eyes of the law. Unlike the law of blasphemy which protected the belief, the modern law protects believers. The Explanatory Notes published with the Racial and Religious Hatred Act 2006 indicate that the purpose is to outlaw hatred which is “based on the fact that the group do not share the particular religious beliefs of the perpetrator”. <67> Unlike the law of blasphemy, which seeks to protect religious beliefs as a source of public morality and social cohesion, the Racial and Religious Hatred Act 2006 simply seeks to outlaw antisocial behaviour committed against people on grounds of religion. The protection extends far beyond the mere established church: indeed, the protection is not focused on ‘religion’ as such but rather upon deviant acts that happen to involve ‘religion’.
However, such a conclusion is perhaps over-simplistic for a variety of reasons.
First of all, the new law does not affect the current law on blasphemy. <68> Moreover, as we have noted, the concessions made for the Racial and Religious Hatred Act 2006 to pass through the House of Commons mean that, like the offence of blasphemy, the new offences in that Act are likely to be rarely prosecuted. Secondly, since the new law now sits alongside the law on blasphemy, it can be argued that this represents more protection of ‘religion’ rather than less and reflects the growing importance of ‘religion’. It may be argued that this shows that the link between ‘religion’ and ‘morality’ is strong in that the Act represents a clear signal that the legislature considers ‘religion’ to be beneficial by protecting believers against attacks based upon their faith. Thirdly, there is no evidence that the Government intended that the Act should weaken the status of religion in any way. <69>
However, even if we accept these short-term factors, this does not preclude long-term causes such as the fact that religious plurality has meant that it can no longer be the case that ‘Christianity is parcel of the Laws of England’. Government Ministers admitted the inadequacy of the existing blasphemy laws. <70> The new law clearly shows the expansion of protection from the Church of England to all religious groups. As such, it is evidence of religious pluralism. However, the extent to which this affects the historical legal attitude is unclear. It is significant that the protection is not focussed upon the beliefs but does not signal that the estimation of the value of those beliefs and their role to society has changed. Thus, although on the surface, the new Act hints at a weakening of the bond between ‘religion’ and ‘morality’, on closer inspection the legal and political evidence does not support such a bold assertion.
CASE STUDY 2: CHARITIES LAW <71>
In order to attain charitable status and the taxation benefits attached to that status, a would-be charity needs to meet three tests. The first is that the purpose of the charity must be regarded as charitable by the law. This met by religious charities if they are for the ‘advancement of religion’. <72> ‘Advancement of religion’ was originally defined as being synonymous with the promotion of the welfare of the Church of England as the established church; <73> however, following the long march of toleration, the concept of ‘advancement of religion’ widened considerably and is now applied liberally. <74> The other two tests are also easily met by religious charities: the second test is that the purpose of the charity must be exclusively charitable; <75> the third that the purpose must benefit the public or a sufficient section thereof. <76>
The law historically presumed that religious charities have such a public benefit unless it is proven otherwise. Religious charities, like charities for the relief of poverty and the advancement of education, were thus in a special position in that all other would-be charities have had to prove such a public benefit.
The law relating to charities has also historically indicated the fact that the state has deemed religion to be worthy of legal protection. As Lord Reid put it in Gilmour v Coates, the law “assumes that it is good for man to have and to practise a religion” but does not “assume that all its beliefs are true” or “determine [its] spiritual efficacy”. <77> The law of charities thus appears to be a textbook example of how the State favours religion and of the prevailing legal viewpoint that religion is a good thing. Advancing religion is seen as socially desirable, as is relieving poverty or advancing education. Durkheim’s notion of religion providing moral solidarity seems to figure large in the law. However, it should be noted that non-religious belief systems have also long been regarded as charitable. Provided that their purpose is benefit to the community, is exclusively charitable and has a public benefit, then they too reap the rewards of charitable status. The only advantage religious charities had is the presumption of public benefit: their secular counterparts actually had to prove this.
However, this advantage was lost as a result of the Charities Act 2006, which codifies centuries of judicial decisions in this field. It also makes a number of changes. By explicitly recognising numerous other purposes as charitable, it surely weakens the central position of religion. The advancement of religion is still recognised as being charitable but it is one among many purposes under the new law. Moreover, the presumption of public benefit previously enjoyed by charities for the relief of poverty, the advancement of religion and the advancement of education is no more: “In determining whether that requirement is satisfied in relation to any such purpose, it is not to be presumed that a purpose of a particular description is for the public benefit”. <78> All new would-be charities have to prove their public benefit. There is an equal playing field. The one advantage for religious charities has ceased to be, and the special protection of religion as a charitable purpose is now in doubt. Although the Act is not retrospective, the Charity Commission has increased powers to reject applications for charitable status and may revoke the charitable status previously awarded. <79> It is thus tempting to see the Charities Act as a dramatic departure: religious charities are now treated like all other charities. <80> Value statements that the law sees religiosity as a good thing cannot be exclaimed so loudly. The protection of the law now extends equally not only to all religions but to all belief systems that have a public benefit. It can no longer be said that charity law reveals a legal conception that ‘religion’ and ‘public morality’ are intimately entwined.
However, such a conclusion may be simplistic. Firstly, under the Act, ‘advancement of religion’ is still regarded as a purpose worthy of legal protection. Since toleration, charity law has not favoured a particular religious belief system but rather the ethical benefits of religiosity itself. As such, this recognition is the clearest possible evidence that the law sees ‘religion’ and ‘morality’ as interwoven. The moral good of ‘religion’ – of any ‘religion’– is seen as being worthy of protection in the guise of financial support and taxation relief. Secondly, in removing the presumption of public benefit, the Government had no intention of downplaying the value of religions. The move towards a new definition of charity based on the principle of public benefit had the intention of removing the few ‘bad apples’: ruling out organisations that were not open to a wide enough section of the population, or run for private benefit.<81> Thirdly, it can be argued that the abolition will not change the situation much, because the presumption could always be challenged on a case-by-case basis. In relation to religious charities, Ministers have commented in Parliament that “the obligation will not be onerous” and that “religions have nothing to fear”. <82> Although this may be countered by the First Report of the Parliamentary Joint Committee on the Draft Charities Bill which noted that it had received “conflicting advice on how much difference” the reversal of the presumption would have in practice.<83>
The short-term causes of the changes in the Charities Act may be to catch the few so-called ‘bad apples’ and to introduce transparency. However, the long-term implications are more interesting. The way in which the new law treats the advancement of religion as being equal to the advancement of the arts and the advancement of amateur sport would surely have been unthinkable in the past. As Alun Michael observed, although the change may be “a sensible minimum step towards modernising the law, it is courageous. It is naive to think in the modern world that all education bodies, or bodies formed with religious aims or the aim of alleviating poverty, are automatically charitable and working in the public interest”.<84>
Like changes to criminal law, changes in the law of charity are not as they first appear. They are not concrete evidence of secularisation or a divorce of religion as a source of public morality. Instead, they reflect religious plurality and a perceived need for multiculturalism. <85>The bottom-line is that the historic protection still exists but ‘religion’is now on a level playing field amongst various secular causes. The extent to which the special protection of ‘religion’ could be said to reflect a legal view that Christian morals underpin the law of the land is now difficult to sustain.
CONCLUSION: TOWARDS A ‘SOCIOLOGY OF LAW AND RELIGION’?
These case studies complicate the picture. The previous cursory view of sociological and legal materials presented the secularisation of society as resulting in the erosion of the close relationship between the Christian ‘religion’ and ‘public morality’. However, the picture is more complicated than that. Yet, it is clear that the law still protects ‘religion’ in various ways. Historically, this protection was accorded only to the Christian church, often only to the Church of England. The historical perception that Christianity is part of the law of the land has lingered on. However, recent legal and sociological change has thrown this into question.
The legal response to religious plurality has transformed the ways in which the law protects religion by providing specific and positive rights. <86> A number of dramatic changes have occurred in recent years: the right to freedom of religion and a qualified right to manifest religion is now part of English law <87> and discrimination on grounds of religion has become outlawed <88>, for example. <89> The two areas examined in depth in this paper, changes in criminal law and changes in charity law, have also brought about significant changes in the legal status of religions. On the face of it, both changes represent a transformation of the legal representation of the relationship between religion and morality. New public order laws seek to protect individual religiosity rather than the Durkheimian premise that religion itself (or to be more specific, Christianity) is at the root of the social order. The new Charities Act no longer assumes that all religious activities have a public benefit and religion is now one of a long list of charitable causes. However, any conclusion that these changes represent the clear divorce between religion and morality in the eyes of the law is an oversimplification. Indeed, legal changes do not reflect secularisation but rather the extension and expansion of protection towards ‘religion’. The exact ramifications of this have yet to be fully understood.
That said, it is clear that the relationship between ‘religion’ and ‘morality’ is evolving.
The social fact of religious pluralism unwittingly challenges the assumptions that the law can embody the morals of any one ‘religion’. It does not, however, challenge the view that ‘religion’ is a moral force. Indeed, in its increased protection of ‘religion’, there is an implicit acceptance of the moral good of religions, regardless of their different theological and doctrinal maxims, based upon their common moral worth. However, inevitably this acceptance is vaguer and more hesitant than the previous identification of the State with a specific religious tradition. <90>
These questions concern the relationship between religion, law and society. As such, neither a purely legal approach nor a purely sociological approach will suffice. <91> Rather, an interdisciplinary approach is needed. A fusion of approaches from law and social science is required since law and sociology are “similarly comprehensive” in that they are concerned “with the whole range of social relations”. <92> In short, a ‘sociology of law and religion’ is required <93>, combining insights from law and religion, the sociology of law and the sociology of religion <94> A ‘sociology of law and religion’ can critically consider how law facilitates the social effects of ‘religion’ by juxtaposing sociological claims with juridical evidence and vice versa. It thus
provides an important agenda for scholarly attention. For academic lawyers, the challenge is to understand both secular and religious law within their sociological contexts; for sociologists, the challenge is to take into account legal change as a concrete component of wider social change. This exploratory examination of the relationship between ‘law’, ‘religion’ and ‘morality’ deliberately leaves many questions unanswered. The only conclusion is that the answers to these questions can best originate from a ‘sociology of law and religion’; an interdisciplinary approach which examines the relationship, not only between law and religion or religion and society, but also between religion, law and society.
NOTES
An earlier version of this paper was presented to the BASR Annual Conference (Bath Spa) 2006. I am grateful for the comments generated by those at the conference. I am also grateful for the comments of the anonymous referee and Rebecca Catto (Department of Sociology and Philosophy, University of Exeter). I am also indebted to my colleagues at Cardiff Law School, most notably Professor Norman Doe, the Director of Cardiff’s Centre for Law and Religion, Professor Mark Hill and Fellow Frank Cranmer.
(See http://www.law.cf.ac.uk/clr)
<1> For a discussion of defining ‘morality’, see G P Fletcher, Basic Concepts of Legal Thought (Oxford: Oxford University Press, 1996) chapter 9 and for a discussion of defining ‘religion’, see R Sandberg, ‘Religion, Society and Law: An Analysis of the Interface Between law on Religion and the Sociology of Religion’ (Doctoral thesis, Cardiff University, forthcoming).
<2> Interview with Roger Day in ‘Crusader’ (May 1979); E Heward, Lord Denning: A Biography (London: Weidenfeld and Nicolson, 1990) p 83.
<3> Various different terms are used to describe the use of social scientific techniques in the study of law. A distinction is often drawn between (a) ‘socio-legal studies’, characterized by the employment of social scientific approaches as a tool for data collection and (b) the ‘sociology of law’ which seeks to understand the nature of social order through the study of law by use of theory (C M Campbell and P Wiles, ‘The Study of Law in Society in Britain’ (1976) 10 Law and Society Review 553). This article rejects this distinction, using ‘socio-legal studies’ and ‘sociology of law’ interchangeably. In doing so, I follow the critique of Banaker and Travers who called the distinction “an obstacle which hinders the development of the social scientific study of law” (R Banaker and M Travers, Theory and Method in Socio-Legal Research (London: Hart Publishing, 2005)).
<4> Unless otherwise stated, the legal materials in this paper relate to the law of England and Wales as it applies at the time of writing (June 2007).
<5> See, generally, the discussion by P Tillich, Systematic Theology I (London: James Nisbet, 1953) p.85 and the discussion by M K Taylor, Paul Tillich: Theologian of the Boundaries, chapter 3 (Available online at http://www.religiononline.org/showchapter.asp?title=2553&C=2405
Accessed 23rd January 2007.) For a discussion of these terms in relation to morality, see M Thompson, Teach yourself Ethics (London: Teach Yourself, 2006).
<6> That is, the teaching role of the hierarchy of the Church: see R Jones, The Canon Law of the Roman Catholic Church and Church of England: A Handbook (Oxford: Continuum, 2000) p.67 and J Coriden, An Introduction to Canon Law (New York: Pauline Press, 1991) p.104.
<7> P Tillich, Systematic Theology I (London: James Nisbet, 1953) 85.
<8> L S Sheleff, Social Cohesion and Legal Cohesion (New York: Rodopo, 1997) p. xi. A classic statement of the purpose of sociology is that provided by C Wright Mills, who noted that three sorts of questions are asked by social analysts “who have been imaginatively aware of the promise of their work”, namely questions on the how society is structured and how social organisation is possible, questions on how societies change over time and questions on how social change affects ‘human nature’: see The Sociological Imagination (Oxford: Oxford University Press , 1959), pp.3-5
<9> For example, Durkheim and Weber’s leading works – E Durkheim, The Elementary Forms of Religious Life (Oxford: Oxford University Press, 2001) and M Weber, The Protestant Ethic and the Spirit of Capitalism (London: Routledge, 2001) – are explicitly concerned with the social effects of religion.
<10> Durkheim, Elementary Forms (2001) p.46.
<11> E Durkheim, ‘The Social Foundations of Religion’ in R Robertson, ‘Introduction’ in R Robertson (ed) Sociology of Religion (London: Penguin, 1969) p.48.
<12> Weber, Protestant Ethic (2001).
<13> Ideology may be defined as ‘the transmuted representation of values which are in fact created by man in society, and the provision of principled support for an existing social and political order’: A Giddens, Capitalism & Modern Social Theory (Cambridge: Cambridge University Press, 1971) 205.
<14> K Marx and F Engels, Marx & Engels on Religion (New York: Fredonia Press, 2002).
<15> The first chapter of Malcolm Hamilton’s student textbook, The Sociology of Religion, ends with a diagram of three overlapping circles: ‘religion’, ‘morality’ and ‘faith’. The author asserts that these three categories overlap to the extent that traditional world religions such as Christianity and Islam are simultaneously religions, faiths and moral systems (M Hamilton, The Sociology of Religion (2nd ed London: Routledge, 2001) 24) ‘Religion’ and ‘morality’ are related in terms of their content, purpose and effect.
<16> R Robertson, ‘Introduction’ in R Robertson (ed) Sociology of Religion (London: Penguin, 1969) p.12. The founding fathers thus realised that the extent to which religion could shape public morality was in decline. For Weber, the key concern was the rise of rationalisation. He wrote of the fear that the individual would become trapped in an ‘iron cage’ stripped of religious meaning and moral values, separated from social institutions and subject to governmental bureaucratic surveillance (Protestant Ethic (2001) chapter 5). Durkheim’s fear was that religiously-inspired morals shared collectively would be replaced by individualism: the decline of religion would lead to loose ‘social bonds’ with the potential of leading to ‘anomie’ or ‘normlessness’ whereby the individual would become isolated (See A Giddens, Durkheim (Fontana, 1978) chapter 5).
<17> See, for example, P L Berger, Sacred Canopy: Elements of a Sociological Theory of Religion (New York: Anchor Books, 1990), and more generally, U Beck, Risk Society (London: Sage, 1992), A Giddens, The Consequences of Modernity (Cambridge: Cambridge University Press, 1990) and Z Bauman, Liquid Modernity (Cambridge: Cambridge University Press, 2000).
<18> R W Fevre, The Demoralization of Western Culture (London: Continuum, 2000).
<20> Fevre, Demoralization (2000) p.9.
<21> C G Brown, The Death of Christian Britain: Understanding Secularisation 1800-1963 (London: Routledge, 2000).
<22> A more precise hypothesis may be drawn out of the work of any of the social theorists referenced above but, for present purposes, it will suffice to draw a broader hypothesis with which these thinkers would be of general agreement.
<23> I McLeod, Legal Theory (2nd ed London: Palgrave, 2003) p.28.
<24> T Honorè, ‘The Dependence of Morality on Law’ (1993) 13 Oxford Journal of Legal Studies 1, p.3. For a summary, see I McLeod, Legal Theory (2003) p.28-29.
Honorè notes that: “ Legal determinants of morality are needed because even when we agree on moral values there is sometimes no way in which they can be translated into detailed obligations except by law”: Honorè, Dependence of Morality on Law (1993) 12.
<25> As McLeod notes, “moral precepts clearly originate from non-legal sources” (McLeod, Legal Theory (2003) p.28.). The converse is also correct: laws do not necessarily have to be grounded in morality.
<26> He noted that ‘law’ may be sharply contrasted with “other social orders which pursue in part the same purposes as the law, but by different means”. He gives the example that while moral restraints are limited to “requiring”, legal restraint “consists of coercion enacted by the order and socially organized” (H Kelsen, ‘The Law as a Specific Social Technique’ (1941) 9 University of Chicago Law Review 78, p79-80. For a summary, see McLeod, Legal Theory (2003) p.30-31.) The popular definition of ‘law’ is a body of rules that are imposed and enforced within a given group: see, for example, Harrap’s Dictionary of Law & Society (New York: Harrap Books, 1989) 159; C Padfield, C., Law Made Simple (London: Chaucer Press, 1981).
<27> Kelsen, Law as a Specific Social Technique (1941) p.80. However, this is a simplification. Kelsen, in common with most legal scholars, focuses exclusively upon ‘secular law’ (the law of individual States and international fora). This ignores the role of ‘religious law’ (the internal laws or other regulatory instruments of religious organisations). Contrary to Kelsen, such laws are recognised socially by human authority. ‘Religious law’ serves to enforce norms. Indeed, the functions identified in respect of ‘secular law’ are invariably also fulfilled by ‘religious law’. For example, the “five basic techniques” by which ‘law’ discharges social functions identified by Robert S Summers apply equally to systems of ‘religious law’ as they do to ‘secular law’: ‘religious law’ remedies grievances, prohibits forms of antisocial behaviour, regulates socially desirable activities, regulates the provision of services and provides for the private arranging of affairs (R S Summers, ‘The Technique Element in Law’ (1971) 59 Californian Law Review 733, p.735 et seq. For a summary, see McLeod, Legal Theory (2003) p.31-35). Like ‘secular law’, ‘religious law’ enforces the norms of the given community: for Ombres, for example, “canon law is applied ecclesiology” (R Ombres, ‘Why then the law?’ [1974] New Blackfriars 296, p.302). See N Doe, ‘Towards a Critique of the Role of Theology in English Ecclesiastical and Canon Law’ (1992) 2 Ecclesiastical Law Journal 328, M Hill, ‘Gospel and Order’ (1997) 4 Ecclesiastical Law Journal 659 and N Doe, ‘Modern Church Law’ in Cambridge Companion to Law and Christianity (forthcoming).
<28> T G Watkin, The Nature of Law (Holland: North Holland, 1980) p.191. These questions are also posed by McLeod in chapters 2 and 11 respectively: I McLeod, Legal Theory (2nd ed Palgrave, 2003).
<29> McLeod, Legal Theory (2003) p.18. For positivists, the two questions of ‘is it law?’ and ‘is it good law?’ are essentially different. Positivist legal theory contends that ‘law’ simply depends upon certain structures of governance. For Austin, there was no need to examine external factors since “The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors” (J Austin, The Province of Jurisprudence Determined (London: John Murray, 1832) p.9.). By contrast, natural law theorists reject the notion that a ‘law’ is defined as such and must be obeyed simply because it has been created through the mechanisms of the particular legal system. For Cicero, “the belief that everything decreed by the institutions or laws of a particular country is just” was “foolish” since there was “one single justice” against which particular laws should be examined (M T Cicero, The Laws (Oxford: Oxford University Press, 1998) p.142); as Augustine famously noted that “an unjust law is not a law”. (St Augustine, On Free Will (London: Macmillan, 1964) 1.5.33). Although the positivist school is generally seen as winning the battle of ideas, natural law theories may not be discarded completely (McLeod, Legal Theory (2003) p.23-24). The debate is thus still ongoing and, given the variety of positions employed within the various schools, the range of views is probably best seen as forming a continuous spectrum” (McLeod, Legal Theory (2003) p.27)
<30> For the historical origins of this debate see N Doe, Fundamental Authority in Late Medieval English Law (Cambridge: Cambridge Univeristy Press, 1990). For reference to the famous debate in the second half of the nineteenth century between John Stuart Mill and Sir James Fitzjames Stephen: J S Mill, On Liberty (London: Collins, 1962) and J F Stephen, Liberty, Equality , Fraternity (Cambridge: Cambridge University Press, 1967), see McLeod, Legal Theory (2003) p.179-180.
<31> Sir John Wolfenden had been charged with chairing the Committee on Homosexual Offences and Prostitution. The resulting report concluded that prostitution itself (but not a range of offences related to prostitution) should remain legal and that consensual homosexual acts between adult males should no longer be unlawful. (The reference exclusively to male homosexuality is due to the fact that lesbianism had not been illegal). The Report reasoned that although the function of the criminal law is, among other things, “to preserve public order and decency” and “to protect the citizen from what is offensive or injurious”, there nevertheless “must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”: Wolfenden Report (Cmd 247, 1957) paragraphs 13 and 61. For a summary, see I McLeod, Legal Theory (2nd ed Palgrave, 2003) p.180-181.
<32> This view was elucidated by Sir Patrick Devlin a High Court Judge, who was to become a Law Lord: P Delvin, The Enforcement of Morals (Oxford: Oxford University Press, 1965) p.13.
<33> This view was elucidated by HLA Hart, the legal theorist as a reply to Devlin. Hart reasoned that law should not prohibit private acts unless there are other good grounds for prohibiting that particular act since there was no evidence to support Devlin’s view that those who deviate from conventional ‘morality’ are “in other ways hostile to society” and that this presupposed an erroneous assumption that ‘morality’ ”forms a single seamless web”: H L A Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p.47, 50-51.
<34> For example, when the Monarch ceased to dispense justice personally, claimants instead petitioned the Chancellor, who was typically either a bishop or archbishop. The ecclesiastical courts operated an extensive jurisdiction and were the earliest courts to resemble modern notions of a court of law (See S.F.C. Milsom, Historical Foundations of the Common Law (2nd ed London: Butterworth, 1981) Furthermore, judicial references to divinity and use of conscience were common and major areas of substantive law – the law of contract, wills, trusts, the law of marriage, blasphemy law, defamation law – were the result of clerical minds (see, generally, the work of Richard Helmholtz and Harold Berman).
<35> Most notably, the leading case in English tort law outlines a Biblical duty, namely the neighbour principle: Donoghue v Stevenson [1932] AC 562. See R Castle, ‘Lord Atkin and the Neighbour Test ‘(2003) 7 Ecclesiastical Law Journal 210-214.
<36> See, generally, R Sandberg, ‘The Legal Status of Religious Denominations and State-Church Relations in the UK’ in Droit des Religions en France et en Europe: Recueil de Textes (Bruxelles: Bruylant, 2006). In relation to the Church of England, the major legal texts are N Doe, The Legal Framework of the Church of England (Oxford: Oxford University Press, 1996) and M Hill, Ecclesiastical Law (2nd ed Oxford: Oxford University Press, 2001).
<37> Bowman v Secular Society [1917] AC 406.
<38> For a discussion of Article 9 see the collection of essays in M Hill, (ed) Human Rights and Religious Liberty (Cardiff: University of Wales Press 2002). See also, M Hill and R Sandberg, Is Nothing Sacred? Clashing Symbols in a Secular World’ [2007] Public Law 488.
<39> See generally: N Addison, Religious Discrimination and Hatred Law (London: Routledge, 2007) chapter 6, R Ahdar and I Leigh, Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005) chapter 12, P W Edge, Legal Responses to Religious Difference (The Hague: Kluwer Law, 2002) p.200-211, R Webster, A Brief History of Blasphemy (London: Southwold, 1990) chapter and House of Lords Select Committee on Religious Offences in England and Wales, Volume I - Report (2003).
<40> Criminal law is concerned with the substantive law which determines whether an act is a crime or not. See D Ormerod, Smith & Hogan Criminal Law (Oxford: Oxford University Press, 11th ed, 2005) p.4
<41>Under section 139 of the Criminal Justice Act 1988, s.139, it is a defence to the charge of having a blade in a public place if the blade is carried “for religious reasons”. In R v Brown [1993] 2 All E.R 75, the House of Lords hinted that consensual body modification, including ritual circumcision of males and religious flagellation, is an answer to a charge under the Offences Against the Person Act 1861. See generally R Sandberg and N Doe, ‘Religious Exemptions in Discrimination Law’ (2007) Cambridge Law Journal 302.
<42> Blake v DPP [1993] Crim L.R 556 (carrying out divine instructions not permitted as a defence to a charge of criminal damage). Note also that English law provides no special protection for Rastafarians for their use of cannabis on religious grounds (Rv Taylor [2001] EWCA Crim 2263, R v Andrews [2004] EWCA Crim 947).
<43> Taylor’s Case (1676) 1 Vent 293. Originally, it was the church courts that policed the offence but from the seventeenth century, it has been enforced by the ordinary criminal courts.
<44> House of Lords Select Committee on Religious Offences in England and Wales, First Report (2002-2003) Volume I, Appendix 3, para 2.
<45> Stephen’s Digest of the Criminal Law (London, 1950) article 2.14 (Quoted by the House of Lords in R v Lemon, R v Gay News [1979] AC 617 (obiter)). The continued existence of the offence was reasserted in Green v The City of Westminster Magistrates’ Court [2007] EWHC (Admin) 2785 (refusal of judicial review of decision that BBC transmission of Jerry Springer - The Opera was not blasphemous).
<46> However, see the confusion surrounding whether the offence protects the Church of England in particular or Christianity in general: “[It] is clear that that protection does not extend beyond the Christian religion, but it is less clear whether in the law of England and Wales it also protects the tenets of Christian denominations other than the established Church. Having regard to the authorities, it seems probable that at most other denominations are protected only to the extent that their fundamental beliefs are those which are held in common with the established Church … We have no doubt that as the law now stands it does not extend to religions other than Christianity.”: R v Chief Stipendiary Magistrate ex parte Choudhury [1991] 1 QB 429 (The Queen’s Bench refused a judicial review into the publication of Salman Rushdie’s The Satanic Verses on the grounds that common law offence applied only to Christian religion).
<47> See, for example, the cases of R v Ramsay and Foote (1883) 15 Cox CC 231: “the mere denial of the truth of Christianity is not enough to constitute the offence of blasphemy” and Bowman v Secular Society Ltd [1917] AC 406: “In the present day reasonable men do not apprehend the dissolution or the downfall of society because religion is publicly assailed by methods not scandalous”.
<48> R Ahdar and I Leigh, Religious Freedom in the Liberal State (p. 367-368.
<49> “Guilt of the offence of publishing a blasphemous libel does not depend on the accused having an intent to blaspheme but on proof that the publication was intentional”: per Viscount Dilhourne, R v Lemon, R v Gay News [1979] AC 617.
<50> House of Lords Select Committee on Religious Offences in England and Wales, First Report (2002-2003) Volume I (HL Paper 95–I) para 19.
<51> R v Gott (1922) 16 CR App R 87.
<52> Freedom Under the Law (London: Stevens, 1949) p. 46. However, although blasphemy was not restrained by force of law, it was curtailed “by t the fears, anxieties and sensitivities of individuals” (See R Webster, A Brief History of Blasphemy (London: Southwold, 1990) and R Hewison, Monty Python: The Case Against (London: Eyre NMethuen Ltd, 1981).
<53> R v Lemon, R v Gay News [1979] AC 617. Upheld by the European Commission of Human Rights: Gay News Ltd v United Kingdom (1983) 5 EHRR.
Note, however, that the text and cartoon drawing published in Gay News were broadcast during the course of the BBC 2 television programme Taboo (broadcast 12.12.01), on the screen. Further, in 2002, a group from the National Secular Society arranged a public recitation of ‘The Love That Dares to Speak its Name’ to commemorate the twenty-fifth anniversary of the prosecution. Advanced notice was even provided in the press. In both cases, there was no police action.
<54> Following the furore surrounding Salman Rushdie’s The Satanic Verses, an application for judicial review was refused on the grounds that common law offence applied only to Christian religion: R v Chief Stipendiary Magistrate ex parte Choudhury [1991] 1 QB 429. Upheld by European Commission of Human Rights: Choudhury v United Kingdom (1991) 12 HRLJ 172. English law on blasphemy was also upheld by Strasbourg in Wingrove v United Kingdom (1997) 24 EHRR. Notice also the revival in moral panics concerning pieces of art on grounds of blasphemy in recent years surrounding the televising of Jerry Springer – The Opera and the publication of twelve cartoons portraying the prophet Mohammed and making a variety of criticisms of Islam in Jyllands Posten, a low circulation Danish newspaper.
<55> This was most notably the case in relation to Wingrove’s Visions of Ecstasy, an eighteen minute silent film derived from the life and writings of St Teresa of Avila, a sixteenth century nun who experienced ecstatic visions of Christ. The first part of the film shows a youthful actress intended to represent St Teresa. The character stabs her own hand with a large nail and spreads her blood over her clothing and naked parts of her body before she loses consciousness. The second part of the film shows St Teresa tied up whilst a near-naked female, said to represent St Teresa’s psyche, exchanges passionate kisses with her. This sequence is inter-cut frequently to a sequence with the body of Christ fastened to the Cross which is lying on the ground. St Teresa kisses and licks the body of Christ, finally entwining his fingers in hers. As she does so, the fingers of Christ seem to curl upwards to hold with hers, whereupon the video ends. The film was submitted to the British Board of Film Classification in request of a certificate under section 4(1) of the Video Recordings Act 1984. The Board refused a certificate on the grounds that the film would be found blasphemous under criminal law. Wingrove appealed unsuccessfully to the Videos Appeals Committee. He did not seek a judicial review since he was legally advised that the Board and Committee’s formulation of the law of blasphemy was an accurate statement of the present law. Instead, Wingrove took his case to Strasbourg, contending breach of freedom of expression under Article 10 of the Convention. The European Court of Human Rights, in Wingrove v United Kingdom (1997) 24 EHRR, held that there was no violation of Article 10 since the limitation was prescribed by law, had a legitimate aim of protecting the rights of others, met a pressing social need and was proportionate.
<56> Norwood v DDP [2003] EWHC Admin 1564: under Public Order Act 1986, section 5.
<57> Hammond v DDP [2004] EWHC Admin 69: under Public Order Act 1986, section 5. Compare these cases with Dehal v CPS [2005] EWHC Admin 2154 where it was held that a notice denouncing a president of a Gurdwara as a hypocrite, a liar and a ‘mad dog’ was not an offence under either section 4A or 5 of Public Order Act 1986 since there was no real fear of public disorder.
<58> Christ of Latter Day Saints v Price [2004] EWHC Admin 325: under Protection from Harassment Act 1998. Note also the ground-breaking case of Singh v Bhaker [2006] Fam Law 1026: following an arranged Sikh marriage, Singh had moved into her mother-in-law’s home. She was forced to do menial housework for hours - including cleaning toilets without a brush - and was kept a virtual prisoner in the house. Singh claimed that she was not allowed to visit the local Sikh temple and was forced to have her hair cut to shoulder length, against her religious beliefs. The court convicted the mother-in-law under the Protection from Harassment Act 1998.
<59> The Crime and Disorder Act 1998 created a new category of ‘racially aggravated criminal offences’. Under section 39 of the Anti-Terrorism, Crime and Security Act 2001 (post 9-11), this category becomes ‘racially or religiously aggravated criminal offences’. See N Addison, Religious Discrimination and Hatred Law (Routledge, 2007) 127.
<60> Sections 20 and 47 of the Offences Against the Person Act 1861: see section 29 of the Crime and Disorder Act 1998 (as amended by section 39 of the Anti-Terrorism, Crime and Security Act 2001).
<61> Section 1(1) of the Criminal Damage Act 1971: see section 30 of the Crime and Disorder Act 1998 (as amended by section 39 of the Anti-Terrorism, Crime and Security Act 2001).
<62> Sections 4-5 of the Public Order Act 1986: see section 31 of the Crime and Disorder Act 1998 (as amended by section 39 of the Anti-Terrorism, Crime and Security Act 2001).
<63> See section 32 of the Crime and Disorder Act 1998 (as amended by section 39 of the Anti-Terrorism, Crime and Security Act 2001).
<64> See I Hare, ‘Crosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred’ [2006] Public Law p.521-538 K Goodall, ‘Incitement to Religious Hatred: All Talk and No Substance’ (2007) 70(1) Modern Law Review p.89-113, J G Oliva, ‘The Legal Protection of Believers and Beliefs in the United Kingdom’ (2007) 9 Ecclesiastical Law Journal p.66-86 and A Jeremy ‘Practical Implications of the Enactment of the Racial and Religious Hatred Act 2006’2007) 9 Ecclesiastical Law Journal p.187-201.
<65> The Government had wanted the offence to be charged either when the defendant had the intention to stir up religious hatred or was being reckless as to whether religious hatred would be stirred up thereby. The Government had also wanted to include “abusive or insulting” words or behaviour in addition to “threatening”.
<66> Section 29J provides: “Nothing in this Part shall be read or given effect in a way that prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs of practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.” However, the value of this statement is one to debate.
<67> Explanatory Notes to Racial and Religious Hatred Act 2006
<http://www.opsi.gov.uk/acts/en2006/2006en01.htm> (Accessed 29 January 2007).
<68> Originally, the then Home Secretary David Blunkett signalled a desire to repeal the blasphemy laws. However, such a measure does not appear in the final act. At Report Stage (8th November 2005), the House of Lords voted down an amendment to abolish the law on blasphemy by 153 votes to 113.
<69> It was said that the Act was designed to meet a gap that existed in the law whereby some religious groups were protected as races but others were not. It has also been claimed that the Act was merely a sop for the Muslim community to ensure their support during the war on terror.
<70> “Let me make the Government's position clear. There is a good case for revising and, indeed, removing existing blasphemy law”: David Blunkett, House of Commons Hansard, 26 Nov 2001: Column 707.
<71> See generally M Blanco, ‘Religion and the law of charities’, (2006) 8 Ecclesiastical Law Journal p.246, F H Newark, ‘Public Benefit and Religious Trusts’, (1942) 62 Law Quarterly Review p.234, P W Edge & J Loughrey, ‘Religious Charities and the Juridification of the Charity Commission’ (2001) 21 Legal Studies p.36 and P W Edge, Legal Responses to Religious Difference (The Hague:Kluwer Law, 2002) chapter 5.
<72> Special Commissioners of Income Tax v Pemsel [1891] AC 531.
<73> Prior to toleration, religious trusts that did not promote the welfare of the Church of England failed as being “against public policy as furthering the schisms of nonconformity, the errors of Rome or the infidelity of Judaism or heathenism”: F H
Newark, ‘Public Benefit and Religious Trusts’ (1942) 62 Law Quarterly Review 234 at 235.
<74> Thornton v Howe (1862) 31 Beavan 14. However, note the narrow definition of ‘religion’ in charity law (Re South Place Ethical Society, Barralet v Attorney General [1980] 1 WLR 1565) and the decision by the Charity Commission to exclude the Church of Scientology: see Church of Scientology Application to Charities Commission (17.11.99) see <http://www.charity-commission.gov.uk/Library/registration/pdfs/cosdecsum.pdf> (accessed 29 January 2007).
<75> Farley v Westminster Bank [1939] AC 430, compare: Re Simson [1946] Ch 299.
<76> Cocks v Manners (1871) LR 12 Eq 574.
<77> Gilmour v Coates [1949] AC 426.
<78> Charities Act 2006, s3(2). See J Duddington, ‘Discreet Festivity and Social Intercourse: Public Benefit in the Law of Charity’ (2005) 155 Law and Justice 100-102.
<79> The Charity Commission’s position paper: Public Benefit – the Charity Commission’s approach states that that public benefit must be assessed “in the light of modern conditions” and that keeping up with “modern society” is required if a charity is not to have its charitable status revoked. See the amendment tabled by Anne Widdecombe MP (26 October 2006) to preserve the existing presumption of public benefit for religious charities which was defeated by 341 votes to 163.
<80> During Parliamentary debates, one MP called the removal of the presumption “absurd” as it “opens up a huge debate about whether religious activities have a public benefit”. He continued, “I am talking not about the activities that flow from religion, as most of them are covered by other charitable purposes, but about directly religious activities such as prayer and moral leadership”: Turner, second reading in the House of Commons on the 26th June 2006.
<81> Home Office, Charities and Not-for-Profits: A Modern Legal Framework, para 3.16. The Government’s view was that the change simply reflected the modern expectation that public benefit ought to be demonstrated. See the comments of Hilary Armstrong during the second reading in the House of Commons on the 26th June 2006: “there has always been the view that public benefit ought to be able to be demonstrated. Every organisation is now expected, as it registers, to publish information annually, so that the public know what it is doing, what its objectives are and how it is fulfilling them, and how it is raising money”.
<82> Since “making provision for people to attend acts of worship is clearly a public benefit. It is clear in case law, and it will remain part of the charity law of this country”: Parliamentary Secretary, Cabinet Office (Edward Miliband), second reading in the House of Commons on the 26th June 2006.
<83> First Report of the Parliamentary Joint Committee on the Draft Charities Bill para 75. As a Minister pointed out, the change must have some “impact” since if the Government had not intended such an impact, “we would not have bothered to do it”: Q59, Mr Etherington, quoted in the First Report of the Parliamentary Joint Committee on the Draft Charities Bill.
<84> Second reading in the House of Commons on the 26th June 2006.
<85> Whilst religious plurality refers to a state of affairs – the existence of a number of religions – multiculturalism refers to an agenda or approach for dealing with this.
<86> M Hill and R Sandberg, ‘Muslim Dress in English Law: Lifting the Veil on Human Rights’ (2006) Vol 1 Derecho y Religión 302-328; M Hill and R Sandberg, ‘Is Nothing Sacred? Clashing Symbols in a Secular World’ [2007] Public Law 488.
<87> Human Rights Act 1998.
<88> Employment Equality (Religion or Belief) Regulations 2003, Equality Act 2006.
<89> For a review of these trends see M Hill and R Sandberg, ‘Is Nothing Sacred? Clashing Symbols in a Secular World’ [2007] Public Law 488.
<90> Speeches by the then Prime Minister Tony Blair and the Leader of the Opposition David Cameron in 2006 and 2007, however, show an increased willingness to emphasize the negative dimensions of ‘religion’. Mr Blair commented that “Being British carries rights. It also carries duties. And those duties take clear precedence over any cultural or religious practice’’ (Speech, December 8, 2006) whilst Mr Cameron, has commented more specifically: ‘‘Those who seek a Sharia state, or special treatment and a separate law for British Muslims are, in many ways, the mirror image of the BNP’’(Speech, January 29, 2007).
<91> A Bradney, ‘Law as a Parasitic Discipline’ (1998) 25(1) Journal of Law and Society 71-84.
<92> R Cotterrell, The Sociology of Law (London: Butterworths, 1992) p.4-7.
<93> A Bradney, ‘Politics and Sociology: New Research Agenda for the Study of Law and Religion’ in R O'Dair and A Lewis, Law and Religion, 4 Current Legal Issues (Oxford: Oxford University Press, 2001); N Doe, ‘A Sociology of Law on Religion – Towards a New Discipline: Legal Responses to Religious Pluralism in Europe’ (2004) 152 Law and Justice 68; R Sandberg, ‘Sociologia del diritto delle religioni’ (‘the sociology of the law on religion’, in Dizionario del Sapere Storico – Religioso del Noveceto (forthcoming), R Sandberg, ‘Religion, Society and Law: An Analysis of the Interface Between law on Religion and the Sociology of Religion’ (Doctoral thesis, Cardiff University, forthcoming).
<94> This is logical. The study of law and religion enables the understanding of the relationship between law and religion. The sociology of religion enables the understanding of the relationship between religion and society. The sociology of law enables the understanding of the relationship between law and society. A sociology of law and religion thus enables the understanding of the relationship between religion, law and society: R Sandberg, ‘Religion, Society and Law: An Analysis of the Interface Between law on Religion and the Sociology of Religion’ (Doctoral thesis, Cardiff University, forthcoming).
©Russell Sandberg 2007
