Issue 162
Church-State Relationships: An Overview (Cranmer, Frank & Garcia
Oliva, Javier) 4
There is a considerable variation in the pattern
of relationships between religious communities and the secular authorities.
The authors offer a fourfold typology of such relationships: Erastianism,
theocracy, cooperationist or hybrid systems and separation. The
reality is, however, that in the real world many countries exhibit
what can best be described as mixed systems, with elements of more
than one of the four types. Moreover, any attempt to construct a
typology must be approached with caution, since the result may be
influenced by the socio-religious standpoint of the observer.
The Place of Religious Arguments for Law Reform in a Secular State (Chaplin, Jonathan) 18
There is a perception that the legislative process in Western European countries has undergone a process of secularisation.
However, faith based legislative action is still appropriate in a secular state but it is necessary to be clear what is meant by secular.
Where the state has the characteristics of impartial and justificatory secularism then faith based legislative action is appropriate at not only the level
of civil society but also at the level of political society. Thus faiths may seek to influence legislation not only at the level of public debate (civil society) but also at the level of political influence.
Thus it is permissible to appeal to religious faiths in seeking to effect changes in the law.
Religion, Human Rights and the Council of Europe: a note (Cranmer,
Frank) 36
The European Court of Human Rights is one of four organs of the Council of Europe, alongside the Council of Ministers, the Parliamentary Assembly
and the Venice Commission, all of which have a role in the operation of the Convention on Human Rights and all of which have been concerned with questions of religious manifestation
and its wider effects on society. There are, however, wider, unresolved questions as to the relationship between the Court and the judicial systems of the member states.
Religion and the state in the United States at the turn of the twenty-first
century (Durham, W. Cole & Smith, Robert T.) 47
This article considers the background to the
First Amendment to the US Constitution, which provides that "Congress
shall make no law respecting an establishment of religion or prohibiting
the free exercise thereof..." and then moves on to look at
its judicial interpretation from the 1990s onwards. It focuses on
the decision in Smith where the Supreme Court jettisoned the 'compelling
state interest' test and at its implications. It is argued, through
a detailed analysis of decisions of state courts, that the effect
of Smith has not, on the whole, been to weaken the protection given
to religious belief by the Constitution.
Law and Religion in Latin America (Pereira, Carmen Asiain) 62
Due to the extent and complexity of the question of Freedom of Religion and Belief in Latin America, it will not be possible in this article to deal with the whole subject, and so the article will only focus on certain aspects regarding Law and Religion. For this purpose, a perspective will be built over a tripod formed by Latin American history and reality, Latin American law - international and domestic - and current concerns for Freedom of Religion or Belief in Latin America.
It will begin by looking into general aspects concerning the Spanish and Portuguese speaking countries in South, Central and North America (including Mexico). After considering Latin America’s common history and present reality, the article will engage in a very general overview of the legal situation in Latin American countries and briefly remark on its main characteristics, including inter-regional instances. It will concentrate on some of the novelties drawn by legislation in the recently developing area of Law and Religion, as well as on some peculiarities, and on the reformation and updating processes that have been taking place during the last years.
Issue 163
Catholic Education (Costigane, Helen) 103
This article considers the role of the bishop with regard to what is taught in Catholic schools in England and Wales. It looks at the history of
religious education in state schools and then moves on to consider the relevant Canon Law provisions. Finally, it examines the debate on the 'Fit for Mission' document issued by Bishop
O'Donoghue and the issue of proselytism or evangelisation.
The Theology of Law of Norman Anderson (McIlroy, David) 110
The Theology of Norman Anderson was developed over many years and this article looks at its main strands in the light of both Anderson's published and unpublished writings.
Anderson's work ranged over a very wide area covering themes such as law and grace, law and love, natural law, morality, law and freedom and the role of government.
The article covers all of these and concludes by looking at Anderson's views on law and social justice, one area where the author finds that his thought might have been more fully developed.
British and Spanish legislation on abortion: a brief comparative overview (Zurita Martin, Isabel) 127
This comparative study considers current Spanish legislation on abortion and proposals for change. It then looks at British legislation and concludes with a brief comparison.
How far can religion affect employment? (Dwyer, Christopher) 142
The Employment Equality (Religion or Belief) Regulations 2003 have generated a substantial amount of case law, much of which has been reported in the case notes section of this journal. This article
reviews the case law and also considers the impact of Article 9 of the European Convention on Human Rights. It concludes by offering some thoughts on points which have emerged.
Issue 164
Buddhism and its relationship with International Law (Dias, Noel & Gamble, Roger) 3
The primary objective of this article is to examine and analyse the influence of Buddhism on international law. The authors briefly introduce Buddhism and its founder Siddartha Gautama and then examine the key doctrinal positions of Buddhism before proceeding to examine a number of standard international law topics and assess or interpret them from a Buddhist perspective.
Islam and English Law (Sandberg, Russell) 27
This paper attempts to delve behind the headlines and beyond the hysteria following a lecture on the relationship between Islam and English law by the Archbishop of Canterbury on 7th February 2008. Whilst the Archbishop's lecture was very theoretical, this article is much more practical. Indeed, whereas his lecture was subtitled 'A Religious Perspective', this article may be subtitled 'A Legal Perspective'. It seeks to discuss the current legal position, not only to undermine the hullabaloo which has existed over the last two years, but also so that we can move forward. Its thesis is that before any changes are made in any direction, we need to understand the current position as it is in the law books and as it is interpreted and used on the ground.
Hindu Law (Menski, Werner) 45
Hindu approaches to law are certainly identifiable as an ancient culture-specific cluster of identity-forming perceptions that can be described as 'Hindu', though that term itself, and its chequered history, remain heavily contested. Even in India today, there are various attempts to deny a legitimate place to Hindu law, treating it as 'constructed', deeply discriminatory because of automatic associations with the caste system, and somewhat outdated for the post-enlightenment world because of its close association with religion. Hindu law concepts, however, invisibly but deeply continue to influence the entire structure of Indian civil and criminal laws, including particularly the Constitution of 1950. Hindu law remains, therefore, an integral element of Indian and wider South Asian and globally Indic identity that no amount of secularising law reform could ever entirely eradicate.
Jewish Approaches to Law (Religious & Secular) (Jackson, Bernard S.) 63
This article begins by looking at Judaism's approach to the concept of law and then moves on to consider the nature and structure of Jewish Law. It then moves on to look at the interaction of Judaism with secular legal systems. This provides a Jewish framework against which the Archbishop of Canterbury's 2008 lecture may be assessed. The article ends by considering some aspects of the interaction between Jewish Law and UK law in particular Divorce (Religious Marriages) Act 2002 and the JFS (Jews Free School) Case.
Who is a Jew? Jewish Faith Schools and the Race Relations Act 1976 (Cranmer, Frank) 75
This article considers in detail the decision of the UK Supreme Court on the admissions criteria of what is known as the JFS, formerly the Jews' Free School (E, R (on the application of) v Governing Body of JFS & Anor [2009] UKSC 15). This school was oversubscribed and part of its oversubscription policy was to give precedence to children recognised as Jewish by the Office of the Chief Rabbi (OCR). The OCR only recognised someone as Jewish if it recognised that person's mother as Jewish ('matrilineal descent') or if he or she had undertaken a qualifying course of Orthodox conversion. The Supreme Court held that this was in breach of the Race Relations Act 1976 as being discriminatory. This article considers both the actual decision and its implications not only for Jewish schools but also for faith schools in general.
Issue 165
Why Have a Tribunal of Second Instance? (Costigane, Helen & Hurley, James B.) 117
Canon 1682 §1 provides for a mandatory
review of all sentences which first declare the nullity of marriage.
This requirement is quite apart from any appeal that may be lodged
by the parties or the defender of the Bond. The question is, given
the often-cited shortage of tribunal personnel or resources, why
is a second tribunal necessary? This essay will look at the annulment
process itself, look at potential problems arising from First Instance
procedures, and consider how the Second Instance tribunal may provide
additional assurance that the process is fair, just and equitable.
Legal pluralism in the liberal state: A defence of the Archbishop of Canterbury or a human rights impasse? (Hill, Ryan W.) 124
The paper is set against the backdrop of the
Archbishop of Canterbury's 2008 lecture in which he suggested that
a degree of formal legal recognition of religious "law" in the religiously
pluralist context of England and Wales seems unavoidable. To support
the Archbishop, it poses and explores two questions for his critics.
The first question concerns the legitimacy of the legal situation
as it presently stands and asks how, in the pluralist context, we
can justify the law functioning as a means to "protect" religious
groups from their own legitimate rule systems? The second question
considers the effectiveness of the law and the legal system against
the reality of an unofficial legal pluralism that sees particular
normative codes being adopted de facto for certain members of the
UK community. The paper considers the strength of the human rights
challenges these two questions reveal. Finally, the paper sets out
the dilemma that not accommodating legal plurality presents for
the liberal supporter of human rights - the liberal human rights
paradox - concluding that the Archbishop's choice of topic is highly
pertinent for discussion but highly complex when it comes to reaching
satisfactory solutions.
Malchus's Ear Revisited: Reflections on Classical Canon Law as a Religious Legal System (Donahue, Charles) 144
(1) This article explores the uses made of
the Biblical story of Malchus's ear in the debate in the eleventh
and twelfth centuries about the validity and efficacy of the sacraments
of simoniacs. (2) It uses that exploration to argue that an important
change occurred in the thirteenth century in the kinds of arguments
that canonists made and that the type of argument made about Malchus's
ear was also not characteristic of canonical argument prior to the
eleventh century. (3) It concludes by suggesting that the type of
argument that was made about Malchus's ear is more like the types
of arguments that are made in canon law in the thirteenth and later
centuries. Possible reasons for the difference , in most periods,
between canon law, on the one hand, and Jewish and Islamic law,
on the other, include: the streak of antinomianism that can be found
in early Christian writing, the different relationship between religious
and secular authority throughout most of the history of the three
religions, the difference in the ways in which religious authority
is structured in Christianity as opposed to Judaism and Islam, and
the tendency of Christianity to separate law and morals more sharply
than do Judaism and Islam.
Financing of Churches in Italy (Durisotto, David) 159
The financing of faith-communities in Italy has undergone considerable change; and the benefits have been extended from the Roman Catholic Church to faith-communities generally. The 'otto per mille' system, in particular, under which a quota of 0.8 per cent of income tax may be allocated by the taxpayer either to one of the participating denominations or to the State itself for humanitarian and cultural purposes is a complex and uniquely-Italian solution to a common European problem.
The Values of the Kingdom and the Laws of this World: an engagement with the thought of Matthijs de Blois (Hyde, Jonathan) 172
The relationship between the Kingdom of God
and secular government is complex and multi-faceted, as de Blois
has explored. There, as in the Bible, a tension exists between the
twin ends of retribution for wrongs and of reconciliation, although
it is perhaps impossible to exclude both from the Bible or from
the proper ends of government.
A further tension stands between the "now" and the "not yet" of God's Kingdom for Christians living under government here and now. De Blois is perhaps right to be sceptical of Christian endeavours to replace secular law with biblical precepts, but the witness of Scripture and of Christian tradition may not require us to choose one extreme or the other. There is perhaps a proper place for government and for the Christian living under it, even though the Christian's ultimate identity is heavenly and the ultimate sovereign for both remains God. An appreciation of the eschatological ends of government can help inform a balanced Christian practically to foreshadow God's kingdom by the good deeds that they can do in the here and now.
Issue 166
Abortion: an Irishwomen's Right to Choose? (Cranmer, Frank) 5
In both Northern Ireland and the Republic the law relating to abortion is exceedingly restrictive, at least in part because of the innate conservatism of Irish society on both sides of the border. This article traces the evolution of the law in both jurisdictions and discusses the latest developments as highlighted by two recent cases: one in the High Court of Northern Ireland and the other before the Grand Chamber of the European Court of Human Rights.
Conscientious Objection in Medicine: Various Myths (Campbell, Mark) 28
Conscientious objection in the medical context - the idea that a doctor, nurse or other healthcare worker might refuse to perform or participate in a particular practice or procedure - has turned out to be a controversial subject. The purpose of this article is to consider three myths about conscientious objection in medicine. Firstly, given the connection with abortion, the debate about conscientious objection in medicine can come to be seen largely as a debate about abortion by proxy. Secondly, there is the view that conscientious objection is necessarily a zero-sum game in a contest of rights, with the doctor's right to conscience pitted against the patient's right to access medical services. Thirdly, it might be said that to accommodate conscientious objection is to prioritise the religious over the secular. Challenging these kinds of myths is an important step in developing a proper account of conscientious objection to guide appropriate legal, regulatory and institutional responses.
Churches and Equal Employment Policy in the United States and the United Kingdom (Waltman, Jerold) 37
This paper compares how much discretion churches enjoy when hiring and releasing staff in the United States and the United Kingdom. Two theoretical models underpin public policy in this area. One stresses the need for all institutions in society to adhere to liberal norms while the other places the emphasis on the autonomy of churches. The two countries exhibit some similarities, but it is the differences that stand out, largely because the UK leans toward the former model and the US the latter. In both, churches have enormous latitude in choosing clergy; even here, though, American churches are more legally insulated from state regulation than their British counterparts. Turning to non-religious workers and people whose jobs have important but not exclusively religious dimensions, the contrasts are stark. The UK allows churches much less flexibility. The reasons, I argue, lie in the differing legal regimes in the two nations, the greater religious diversity and intensity found in the US and the fact that sexual orientation is not a prohibited category in the US.
The Continuing Relevance of Doctors' Commons (Pocklington, David) 52
This article analyses the factors contributing to the rise to prominence of Doctors' Commons, its success over a period of political uncertainty, and its subsequent loss of influence. It argues that its early success was the result of a fortuitous combination of circumstances during the Reformation, which was consolidated by the continued support of subsequent monarchs, the Civilians' international expertise in related areas, and several associated monopolies and positions of influence.
Whilst its demise is generally attributed to the loss of its testamentary and marriage activities in the late 1850s, it was long accepted that financial viability lay with its work in the admiralty jurisdiction, which also secured a substantial degree of influence. Although members of Doctors' Commons were active in a number of areas, it is the loss of a focus for scholarship in canon law that has been the greatest impact of its demise. The past decade has witnessed a growing requirement for professionals with expertise in this area and the experience of Doctors' Commons suggests a model with which future 'canon lawyers' can address the new challenges.
Issue 167
Edmund Plowden and the Rule of Law (Longmore, Andrew) 5
This was a Reading by Master Andrew Longmore, Autumn Reader 2010. It is reprinted with the kind permission of the Masters of the Bench of the Honourable Society of the Middle Temple. This lecture first appeared in Issue 50 of the Middle Templar (for Spring 2011).
Maga and Direct Liability in Negligence (Hall, Helen) 11
Most of the academic commentary on Maga v Trustees of the Archdiocese of Birmingham has focused on the importance of the case for the development and application of vicarious liability. However the decision also has significant implications for the direct liability of clergy in negligence. When read in the light of other recent cases on an assumed duty of care, the dicta in Maga can be seen to confirm the generally restrictive approach of the UK courts in finding such duties. Although on the facts of the case the cleric was found to have assumed a duty of care, the judgements make it clear that this is likely to be a rare finding beyond the context of sexual abuse.
Maga and Vicarious Liability for Sexual Abuse (Cranmer, Frank) 20
The judgment of the Court of Appeal in Maga v Trustees of the Archdiocese of Birmingham of the Roman Catholic Church may have provided some reassurance that direct actions in negligence against clergy performing their ministerial functions are likely to remain rare; but it also seems to underline the fact that the courts are inclined to side with victims of clerical sexual abuse who argue vicarious liability on the part of Church authorities.
Legal Protection of Sacred Places as a Medieval Gloss - Towards Working 'Soft Law' Guidelines under Public International Law (Petkoff, Peter) 27
This article explores the possible shape of a soft law for legal protection of sacred places under international law. It examines existing mechanisms which protect, in a fragmented way, certain aspects of what could be construed as sacred places, assesses the strengths and weaknesses of these mechanisms, and seeks to identify a broader common concept of a sacred place beyond, and at the same time incorporating, existing legal categories of places of worship, freedom of manifestation, heritage sites et al. Finally the article will propose directions for working out a soft law which would facilitate multilayered legal approaches to reflect the sometimes multiple identity and complex nature of sacred places.
Witchcraft: from Crime to Civil Liberty (Harris, Caroline) 54
The concepts of human liberty and religious freedom have resulted in a tacit acceptance of witchcraft, if not an absolute understanding. This article seeks to achieve an exploration of how this has come to be and how the law relating to witchcraft has developed, focussing mainly on the laws and trial processes in England compared to continental Europe, including historical differences in procedure between the ecclesiastical and secular courts.