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Abstracts of Articles

The abstracts of the main articles from the most recent
past journal issue numbers are listed below.

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 (Martin, Isabel Zurita) 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.

Issue 168

Baptist Church Polity and Practice (Goodliff, Paul) 5

Baptists occupy a distinctive middle ground between those traditions that operate with a centralised and hierarchical legal structure supported by either canon or other statutory law enshrining the polity of the church in a variety of dimensions, and those independent congregations who conduct their life without any reference to a wider ecclesial body, and organise themselves according to their own decision-making powers alone. All, of course, are subject to civil law especially law of property, charity law and, increasingly, employment law. This article, however seeks to explore the way in which Baptists (and here, I specifically mean those Baptist churches in membership with the Baptist Union of Great Britain (BUGB)) straddle a middle ground between local congregational independence and Union-wide policy and regulation.

The Church of England and the State: A National Church for a Plural Nation (Harte, David) 22

The law relating to the Church of England is public law because of the church's 'establishment' as part of the general law of the land. Although criticised both by secularists and by some within it, this legal provision for a national church can be seen as benefitting today's plural society by maintaining a spiritual dimension to national life which is supportive of Christianity and of religious faith generally. Here, the local, low or grass roots establishment is as important as the 'high establishment' of the Church of England's constitutional role.

The Law of the Catholic Church and the Law of the State (Read, Gordon) 44

The Catholic Church starts from a basic principle that her right to exist comes from God and that this brings with it certain inherent rights of self regulation. These are currently expressed through the Code of Canon Law promulgated for the Church of the Latin Rite in 1983, and the Code of Canons of the Eastern Churches promulgated in 1990, and also local laws. God also provides for the well being of human beings and society through various forms of civil government. This also brings with it inherent rights with regard to those who are citizens or otherwise subject to their laws. In many areas the law of Church and state operate alongside each other in mutual respect. The Code of Canon Law leaves some areas of life to the law of the state and also canonises or makes some civil laws its own. However, there have always been areas of potential conflict, especially with regard to the administration of temporal goods and marriage, and, in certain periods, also more general questions of religious freedom. This study looks at these areas and also at efforts to resolve them through bilateral agreements between the Holy See and civil governments.

The Legal Position of the Anglican Church in New Zealand and Australia: Quasi-Establishment and Consensual Compact (Cox, Noel) 62

The legal position of the Anglican Church in Australia and New Zealand followed parallel but distinct routes, from the foundation of the church in the countries in the eighteenth and nineteenth centuries. In Australia it began as an established church - essentially through the military chaplaincies of the early colonial government. In New Zealand it commenced through the unregulated (by Government) missionary activities of the Church of England. By the twentieth century the church in Australia was disestablished, but the situation remained more complex than this in both countries. In New Zealand the reliance of the Church upon secular legal systems and processes meant that its legal status was more akin to quasi-established than non-established, even though the basis of the church's own rules was the voluntary consensual compact of its members.

Issue 169

Church Law and the Nuttiness Coefficient (Cranmer, Frank) 157

The Scots systematic theologian Ian Henderson asserted in the 1960s that Churches with doctrinal prescriptions that appeared to conflict with generally-recognised moral obligations ran the risk of alienating non-churchgoers. In so doing he raised the more general issue of how we should respond when a moral duty appears to conflict with a positive one. The article suggests that Henderson's conclusion still remains valid and that church legislators should be careful to distinguish the things that are essential to their faith from those that are merely transitory or administratively convenient.

Secular Law: Is it at all Possible? (McIlroy, David) 172

The question: is secular law possible? is a provocative question in twenty-first century Britain, a country where most people still identify themselves as Christians but are ambivalent at best about the interventions of the churches into politics. However, in order to address this question it is important to understand the different meanings which might be given to "secular". Whilst a total separation of religion and politics is not only impossible but dangerous, Christian doctrine has been a key contributor to the idea of secular law itself.

Stair, Natural Law and Scotland (Allison, Stephen) 189

Viscount Stair was one of Scotland's greatest lawyers. He was a committed Christian and his Christian faith influenced all of his life. He led a distinguished public career, consistently standing up for his principles but is better remembered for his seminal work, the Institutions of the Law of Scotland. Within his Institutions Stair sets out for the first time to explain the entire private Law of Scotland in a rational and systematic fashion based on Natural law. Stair's theory of natural law "is pervasively and ineliminably theological" and serves as the best evidence that Scots Private Law is fundamentally based on the strongest Christian principles.

Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission: Defining the 'Ministerial Exception' in U.S. Employment Law (Waltman, Jerold) 210

The Lutheran Church-Missouri Synod (LCMS) - so named because it was founded in and remains headquartered in St. Louis, Missouri - is the second largest Lutheran body in the United States and the nation's eighth largest Protestant denomination. It contains 2.4 million baptized members in 6,200 congregations scattered throughout the country, but with more of them located in the Midwest than elsewhere. It operates the largest Protestant school system - 1044 elementary and secondary schools enrolling 125,825 students - in the United States, and sponsors 10 universities and seminaries. These institutions are all considered by the church to be an integral part of its witness to the world. Serving the churches and schools are approximately 10,000 pastors and teachers.

The LCMS holds to a more traditional, orthodox (some would say 'conservative') interpretation of Luther's teachings than the other main American Lutheran body (the Evangelical Lutheran Church in America). lt has insisted, for instance, on scriptural inerrancy and ordains only men to the main pastoral role.

A dispute between the Hosanna-Tabor Lutheran church in Redford, Michiganand a teacher at its elementary school led to one of the most important Supreme court cases involving religious freedom in recent constitutional history. It raised once again the difficult question of how far government can go in protecting selected categories of employees against workplace discrimination when the employees involved ply their trades and professions in religious organisations and religious institutions. It pits the legitimate and widely-supported demand - made manifest in the law - that people be treated fairly in the workplace against the claimed autonomy of the churches. The result here was a strong endorsement of the autonomy of the churches.

A Critical Legal Pluralist Analysis of R (On the Application of Begum) v Headteacher and Governors of Denbigh High School (Codling, Amy R.) 224

The article revisits the leading case on the accommodation of religious dress in England. The case was concerned with whether a student's alleged exclusion from school for wearing a jilbab (a long coat-like garment which covers the whole body except the hands and face) infringed her right to manifest her religion under Article 9 of the European Convention of Human Rights. The House of Lords held that there had been no infringement of the student's right protected under Article 9(1) and, if there had been such an infringement, this was justified under Article 9(2) as the Headteacher and Governors had developed a uniform policy with the legitimate aim of enabling social cohesion in a multi-cultural and multi-faith school. Several criticisms and alternative approaches developed by doctrinal scholars are considered in the article. A critical legal pluralist perspective of the case is offered as one way for a religious believer's narrative account to become central in court judgments in religious dress claims.

Vicarious liability for sexual abuse; unincorporated association of lay brothers: an extended note on The Catholic Welfare Society and others v and The Institute of the Brothers of the Christian Schools [2012] (Hall, Helen) 246

The De La Salle Institute (‘the lnstitute’) is an unincorporated association of Roman Catholic lay brothers; its mission and purpose is the provision of Christian education to boys. The case concerned whether the Institute could be vicariously liable for sexual abuse committed by brothers whilst working in a school owned and managed by a series of legal entities, which latterly were emanations of the Roman Catholic Diocese of Middlesbrough (‘the Middlesbrough Defendants’).

The Middlesbrough Defendants employed the brother teachers under secular employment contracts, and it was not disputed that they were vicariously liable for sexual abuse perpetrated by their employees. The issue before the Supreme Court was an appeal by the Middlesbrough Defendants against a finding by the first instance judge, confirmed by the Court of Appeal, that the Institute was not also liable for abuse committed by its members. The Claimants were content to look to the Middlesbrough Defendants for relief and took no part in the Supreme Court proceedings.

Issue 170

The 10th Richard O'Sullivan Memorial Lecture: Does Establishment have a Future? (Mackay of Clashfern, Lord) 7

The 10th Richard O'Sullivan Memorial Lecture on the fiftieth anniversary of the founding of the journal 'Law and Justice - the Christian Law Review', delivered in Middle Temple on May 9th 2013.

How Does Christianity regard English Law? (McIlroy, David) 19

Fifty years ago it was still possible for Richard O 'Sullivan to describe English law as the practical application of Christian philosophy and ethics. Today, both Christianity in England and English law are complex, diverse and fragmented phenomena. The attitude English Christians have towards English law can be synthesist, conversionist, social justice, separatist or principled pluralist in orientation. There is therefore a range of Christian positions on questions such as the criminal law, access to justice, welfare provision, family law, human rights, life issues and sexual morality. Nonetheless, English Christians share a common thankfulness for the lack of corruption in the English legal system and for the stability of British political structures and public order. However, many have anxieties that successive governments are losing a proper sense of the limitations of their powers. If Richard O'Sullivan were writing today he would be concerned that, step by step, the political classes in Westminster may blunder into legislating away the freedoms which the reasonable Englishman and woman have enjoyed thanks to Christianity's in?uence on English laws and law-makers. It is to be hoped that in the century to come Christianity will continue to in?uence English law so that justice is available for all, the poor and the weak are protected, civil society is fostered and freedom of faith and conscience is respected.

The Influence of the Bible on English Political Thought (Spencer, Nick) 49

The Bible has been the single most influential text in British political life. This paper outlines that influence through three distinct phases (pre-Reformation, immediate post-Reformation (c.1535 - 1660), and post-Restoration), tracing its impact on five fundamental political commitments: nationhood, justice, democracy, equality, and toleration. It concludes by arguing that despite the fact that Christians have been found on both sides of many of the relevant political debates from which a commitment to these virtues emerged, there are hermeneutical principles, evidenced from history, that generate a coherent and authoritative way of reading the Bible politically.

Accommodating Religion in the Workplace - or Maybe Not? A Note on Chaplin, Eweida, Ladele and McFarlane (Cranmer, Frank) 67

On 15 January the European Court of Human Rights handed down its judgment in the conjoined cases of Ms Shirley Chaplin, Ms Nadia Eweida, Ms Lillian Ladele and Mr Gary McFarlane, all of which related to the right to manifest one's religion under Article 9 (thought, conscience and religion) and 14 (discrimination) ECHR. The facts of the four complaints are investigated here.

Issue 171

Church and State in the Roberts Court (Waltman, Jerold) 5

It is always a bit artificial to designate eras on the Supreme Court by the name of the Chief Justice. Nevertheless, we do it all the time, and there is ample justification for such labelling; for example, the Warren Court, the Burger Court, and the Rehnquist Court, to cite the three most recent examples, mean something more than mere chronological demarcations. While every appointment changes the dynamic of the Supreme Court, a shift from one Chief Justice to another is even more important. This is true because he exercises a subtle but significant intellectual leadership. The most important aspect of this is assigning opinions, which he does any time he is in the majority. Nuances and stresses on certain ideas thereby become embedded in the law, and serve simultaneously as guideposts for lower courts and precedents for future decisions.

At the same time, there are always social, economic, demographic, and intellectual changes occurring in the society at large, and these work their way, even if only indirectly, into the thinking of the justices.

The first section of this article will survey some important social and intellectual changes regarding religion in American life that have occurred in the last several years. Chief among the social changes are both a new diversity and a growth in secularism. The intellectual ferment is especially pertinent to the Establishment Clause, but there were ramifications regarding the Free Exercise clause also. The second section will examine the six cases concerning church and state that have been decided by the Roberts Court. Finally, the third section will ask whether any trends can be spotted on the current Court.

Institutional Religious Symbols, State Neutrality and Protection of Minorities in Europe (Martinez-Torron, Javier) 21

This article examines religious symbols from the perspective of what is meant by state neutrality in religious matters and argues that neutrality cannot be a uniform constitutional principle, enforced at the European level, containing a particular notion of how the relations between state and religion should be structured. It argues that the judgement of the Grand Chamber in Lautsi II was correct but that the Court could have developed the idea that coercion should be the test for a violation of freedom of religion or belief, and not the subjective feeling of offence experienced by some persons in the presence of some religious symbols. The article, in addition to looking at the jurisprudence of the ECtHR, also looks at that of continental national courts with a particular emphasis on the approach adopted in Spain and Germany.

Religious Symbols and the European Convention on Human Rights (Hill, Daniel J. and Whistler, Daniel) 52

In this article, which draws on our monograph The Right to Wear Religious Symbols (Basingstoke: Palgrave, 2013), we examine the development of the case law of the European Court of Human Rights ('the ECtHR ') and the now-defunct gateway body the European Commission of Human Rights ('the Commission') concerning the right to wear religious symbols. We contend that the case law exhibits a change over time that we call 'the practical turn'. Our discussion proceeds up to the recent case of Eweida v UK.

Conscience in the Courts - Another View of Eweida (Bartlet, Michael) 70

Defeat in the Strasbourg Court of Human Rights is seldom welcomed by any Government. Yet the decision in Eweida v The United Kingdom has 'delighted' David Cameron who applauded that 'the principle of wearing religious symbols at work has been upheld.' The decision marks a watershed for the protection of freedom of conscience and future governments may be less delighted by some of its implications.

The Employment Status of the Clergy: Preston starts to Unravel (Duddington, John) 79

This article argues that the decision in Preston v President of the Methodist Conference is yet another instance of a failure by the courts to engage properly with the status in employment law of ministers of religion and that the most recent decision in Sharpe v Worcester Diocesan Board of Finance Ltd. and the Bishop of Worcester (2013) is a further example of the problems that have arisen through lack of a coherent legal framework in this area. It suggests that the only solution is a joint approach by all churches and other religious denominations to the Government with proposals for an agreed legal status for ministers of religion.

Issue 172

The Theology of Law (Micklem, Nathaniel) 4

This is the text of a sermon preached in St Dunstan-in-the-West Church, Fleet Street on May 9th 1943, before the Middle and Inner Temple. It is reproduced by kind permission of Oxford University Press, who hold the copyright.

Half-Opening Cans of Worms: The Present State of 'High' Anglican Establishment (Morris, Robert) 10

This article attempts to review where 'high' establishment now stands in the United Kingdom (UK). By 'high' establishment is meant the interaction of the Church of England and the UK state at the constitutional level as opposed to its workings on the ground within dioceses in England. Discussion begins by examining what the Succession to the Crown Act 2013 can be judged to say about the Anglican establishment in England. It then moves on to consider recent discussion about the constitutional place of religion in the UK with particular reference to the proceedings of the Joint Parliamentary Committee on the Draft House of Lords Reform Bill in 2011 and the Queen's remarks as Supreme Governor at a Lambeth Palace function at the beginning of her 60th Jubilee year in 2012. The article argues that all these proceedings, although they included attempts to defend establishment, have instead merely drawn attention to its enduring deficiencies.

Canonical Equity in the Latin Church and Economy in the Orthodox Church: an equivalent relaxation or essentially different system? (Dickinson, Meryl) 27

A recognised feature of valid laws is that they must be clear, concise and understandable. One of the main resulting problems is that laws are interpreted strictly and this can lead to harsh judgments. The clearest example of this can be seen in cases of strict liability whereby no mitigating factors can be taken into consideration. In order to counter this a number of devices have developed over the years in order to take account of mitigating factors should the individual circumstances of the case require it. These devices now appear in a number of legal systems, and ecclesiastical law is no exception. References to the doctrine of equity, dispensation and necessity are rife within the Canon law of a number of churches and these are used to allow for the relaxation of legal rules should circumstances require. What is equally evident is that although such rules exist within these churches, the precepts that they are based on, sources where they are drawn from, and names are always slightly different. What is intended in the following article is to draw upon two of these devices, Canonical equity in the Latin Church and the Orthodox use of economy, in order to discover if they are, in modern times, equivalent devices or if there is a greater distinction embedded through their religious development and guidance for their use.

For a European Range of Clearly Defined Usury Rates (Cavalier, George) 42

The financial crisis that originated in the US has fuelled a growing debate on interest rates, and one may even wonder if stricter regulation makes sense in Europe: some countries - like the UK - are today relaxed about limitations on interest, but others - like France - are very efficient towards interest rate restrictions. This paper investigates historical, economic, and current aspects of Western laws regarding the prohibition of interest in a loan contract. The common Canon Law prohibition of interest, once shared in Europe, was in fact held in check by a distinctive civil law practice.

Nowadays, most Western laws prohibit only 'rapacious' interest rates. However, one observes a general move towards more fairness in the treatment of interest in Europe. The comparative study carried out by this paper on legal and tax caps on interest may also show the direction to follow. The second part of this article highlights the point that, nowadays, most Western laws prohibit only 'rapacious' interest rates. Even the UK, traditionally more relaxed on interest limitation is imposing, for tax deduction purposes, caps on interest. A comparative survey seems to show the direction to follow.

The conclusion is that this current trend may promote a European range of clearly defined usury rates.

Issue 173

The EHRC's Work on Religion or Belief (Perfect, David) 113

The Equality and Human Rights Commission (EHRC) was established in October 2007. A GB-wide body, its mandate covers nine protected characteristics (age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity). The EHRC has also been Great Britain's National Human Rights Institution (NHRI) since 2009. It is a non-departmental public body, and its sponsor department is currently the Department for Culture, Media and Sport.

After briefly outlining the context of equality and human rights law with regard to religion or belief, this paper first describes the EHRC's previous legal, policy and research work, focusing in particular on the aspects of policy and research work that touch on legal issues. It then discusses the current policy and research activities which are designed to implement its 2013 religion or belief strategy.

Human Rights Theory: Fit for Purpose, Fundamentally Flawed or Reformable? (McIlroy, David) 129

For all the achievements of the human rights movement, persistent questions remain about the theoretical basis for human rights. Human rights theory attempts to solve three problems: the problem of religious disagreement, the problem of how to identify common values and the problem of holding governments to account. Joan Lockwood O'Donovan argues that the ability of human rights theory to address those problems effectively is undermined by the predominant concept of rights. This concept of rights as 'things which belong to individuals' gives rise to or reinforces trends towards individualism, possessiveness and litigiousness. Nicholas Wolterstorff offers a reformed account which understands human rights as a form of normative social relation. This essay contends that, in addition, responsibilities need to be given priority over rights and that there needs to be renewed deliberation about the common good in order to overcome the problems which human rights theory seeks to confront.

The Regulation of Cremation Residues by Church and State - Past, Present and Future (Pocklington, David) 145

Within the United Kingdom, over seventy four per cent of funeral services are followed by cremation, and there is an increasing trend for the resulting ashes to be given to relatives for disposal. Nevertheless, there is little secular or religious legislative control over the creation or disposal of cremated remains, an issue identified by recent media investigations. This article traces the development of the cremation process and the involvement of religious groups, and the problems associated with the treatment of cremation residues. It concludes that although operating within a framework that is essentially Christian, the lack of prescriptive controls permits the requirements of other faiths to be accommodated.

Trying to Catch the Deluge: Shari'ah, Terrorism and Religious Freedom (Carneiro, Pedro Erik) 173

Islamic countries have their own declarations of human rights and conventions on terrorism. These highlight the fact that that their reasoning is commanded by Shari'ah. In Shari'ah, 'Allah is the goal, the Prophet is the model, the Quran is the constitution'. Thus, the best place to search for roots of understanding between Islamic and International law regarding religious liberty and terrorism is the Quran. However, scholars tend to ignore theology in discussing whether there can be reconciliation between the two systems and this affects their conclusions. This paper raises the question of whether the love of God and love of neighbour can be the roots for understanding. First, the theist position is taken in the debate as to whether a 'jus cogens' could transcend God. Then, the stand taken by the Quran is considered in respect of 'People of the Book', 'jihad', and 'apostasy'. These three controversial issues are then set against the single idea of loving the enemy. The paper concludes that the Quran is too contradictory to provide a clear position. Nevertheless, it is too problematic to avoid the Quran. Such avoidance could be the main reason why Westem scholars find deaf ears in the Islamic world. The paper concludes that the very formation of social science courses needs to be changed so as to include deeper analysis of revealed and natural theologies.

Issue 174

The Living Rule of Law: an Essay in Virtue Jurisprudence (Rivers, Julian) 5

The 800th anniversary of Magna Carta reminds us of the value of the rule of law. Yet it also raises a puzzle about where, exactly, that value is located. Discussion of the rule of law generally revolves around three main axes: a formal - substantive axis, a state - judicial axis, and an abstract - concrete axis. All three assume that the rule of law is at root a matter of good institutional design. Although important, this is nevertheless problematic, because it masks the presence of law in everyday human relations and directs attention towards questions of institutional reform, which often proves ineffectual in practice. To redirect our attention, we need first to see state law as one (important) form of a much broader concept of human law, and, second, to see how relating lawfully is an expression of a pervasive ethical stance towards others. This in turn enables us to identify the virtues which make law, and Government by law, possible.

Blame Games: A Christian Perspective on "No-Fault" Divorce (Hyde, Jonathan) 35

The extent to which fault should form part of divorce law has long vexed English legislators and Courts, as well as many Christians. Both Scripture's teaching on divorce and how English law has dealt with it are complex, but by reviewing them critically, albeit briefly, this paper proposes a Christian perspective on this thorny and sensitive issue in the light of current English divorce law.

Towards the Reasonable Accommodation of Religious Freedom (Smith, Peter) 77

The Court of Appeal's decision in Mrs Mba's case is notable because: (a) it rejects the qualitative evaluation of her Sabbatarian belief as a 'core component' of Christianity in assessing for the purposes of domestic anti-discrimination legislation the proportionality of her employer's requirement for her to work Sundays; (b) it continues to keep minimal the size of the group required to show group disadvantage; and (c) per Elias LJ and Vos LJ, it finds the assessment of group disadvantage to be incompatible with Article 9 when the ECHR is engaged. The case represents the continued move from a group to an individual focus, and is welcome: it better protects personal religious freedoms. The logical conclusion is for domestic law to oblige employers to reasonably accommodate religious rights via a sui seneris legal mechanism.

Wales and the Law of Marriage: 'Vestiges of Establishment' Revisited. (Cranmer, Frank) 96

In spite of being disestablished, the Church in Wales is under certain obligations at common law that are not shared by the other denominations: principally in relation to marriages and burials. Nor (unlike the Church of England) does it have the capacity of its own motion to amend the law relating to marriages in church in order to take account of changing social conditions. What follows argues for devolution of marriage law in Wales to the National Assembly and, more generally, for wholesale reform and consolidation of marriage law both in Wales and in England in a manner that would make it more accessible to non-specialists and better in tune with modern social realities.

Issue 175

The Magna Carta, a One Nation Justice Policy, Access to Justice and the Role of the Church (Caplen, Andrew) 166

In this Magna Carta year, the vital issue of the state of our justice system was largely sidelined, notwithstanding that one of the fundamental duties of the State is to provide full and fair justice for its citizens. This essay seeks to redress that balance and, in particular, to consider the role that the Church should play in the often neglected question of how to provide access to justice to those who need it most.

Are Political Beliefs Religious Now? (Sandberg, Russell) 180

The definition of ‘religion or belief’ for the purposes of discrimination law has always been rather fuzzy. One point of early certainty, however, was that political beliefs are excluded. An Employment Tribunal (ET) decision, recently approved by the Employment Appeal Tribunal (EAT), has removed this clarity, stating that political beliefs can now be protected. This article falls into two parts. The first explains how the definition of ‘religion or belief’ for the purposes of discrimination law has evolved, paying particular attention to the question of whether political beliefs are included. The second analyses the decisions of the ET and EAT in General Municipal and Boilermakers Union v Henderson. The article explores the likely effect of Henderson upon the future interpretation of discrimination law, exploring how it affects the 'tests' previously proposed in the case law for the definition of 'religion or belief'.

Voting, Values and Virtue: the hopeful quest for Christian political unity (Spencer, Nick) 198

This article argues that Christianity has something positive and concrete to contribute to politics. From this standpoint it examines the extent to which there is a general picture of religious voting behaviour or whether different religious views are in fact reflected in different voting patterns. It then asks where Christians sit with regard to political values and ends by asking what society would be like if we and society as a whole took Christianity seriously.

The Constitutional theory of Burwell v Hobby Lobby (Alexander, Rachel) 209

This paper examines the role the Religious Freedom Restoration Act of 1993 (RFRA) took in the U.S. Supreme Court religious freedom case Burwell v Hobby Lobby. Because the Court relied on RFRA instead of the First Amendment to protect the businesses' religious liberty, Hobby Lobby is not permanently settled. If Congress changes the special protection religious liberty currently maintains under RFRA, could the Court nevertheless arrive at its decision in favour of Hobby Lobby? This paper explores whether the Court might have viewed conservative Christian companies Hobby Lobby and Conestoga Wood as belonging to a discrete and insular minority as an alternative route. If so, it would arrive at the same or a similar decision with what John Hart Ely calls a 'participation-oriented, representation-reinforcing approach to judicial review.' That is, even if Congress were to appeal RFRA, conservative Christians' status as a discrete and insular minority might warrant strict scrutiny, because the strategy of pluralism is not always sufficient to 'protect the interests of minorities from the potentially destructive will of some majority coalition.'

The Churches' Funerals Group and some current issues in burial law and practice (Cranmer, Frank) 228

The Churches' Funerals Group is a rather unusual ecumenical body that operates somewhat below the radar - but it does so in an area that is of great importance both legally and pastorally. What follows looks briefly at the work of the Group and its history and explores some current issues in burial and cremation law in which the Group has been involved.

Issue 176

11th Richard O'Sullivan Memorial Lecture: Can a Christian still be a High Court Judge today? (Hedley, Mark) 6

The 11th Richard O'Sullivan Memorial Lecture delivered in the Temple Church on November 3rd 2015. Has the gap between Divine law and secular law become too wide?

What are the implications of being a church-controlled charity in the Church of England and the Roman Catholic Church? (Meakin, Robert) 18

There are potentially serious implications for these churches both from a canon law and civil law perspective if they control charities. Whether liability will fall upon a particular part of the church will depend on the level of control exercised by an ecclesiastical authority recognised by the civil law. There is a trend for the laity to take over trusteeships of charities such as schools from the clergy and religious. In general terms, if control is relinquished to the laity then liability will fall on the laity rather than the clergy or religious that devolved such power. From a secular legal perspective, if a charity is controlled by the church then there might be issues of potential liability for the church through the law of vicarious liability. The level of control exercised by the church will also influence the extent to which it can control doctrinal issues. The Roman Catholic Church and the Church of England need to consider carefully the implications of controlling or not controlling their charitable structures both in terms of potential liability, doctrinal orthodoxy and property ownership. This is particularly important as control is increasingly devolved to the laity whose views might be at odds with church authorities.

Marriage law reform in England and Wales: a note (Cranmer, Frank) 39

In December 2014 the Government asked the Law Commission to conduct a review of the law governing how and where people can marry in England and Wales. The presenting issue was the debate in Parliament during the passing of the Marriage (Same Sex Couples) Act 2013 on the possibility of non-religious belief organisations being able to conduct legally-binding marriages. The underlying question was whether the current law provided a fair and coherent legal framework for enabling people to marry: in short, 'Does the law allow people to marry in a way that meets their needs and wishes while recognising the interests of society and the state in protecting the status of marriage?

The new legal status of religious organisations in Greece (Tsivolas, Theodosios) 42

From a historical standpoint, the Greek State had never devised an individual scheme or separate category of legal personality designed exclusively for organisations of a religious nature. Besides, there had never been an official registry regarding the plethora of religious organisations in Greek society. This long-lasting status quo was overturned in October 2014, when the Law on the 'Organisation of the legal form of religious communities and their associations in Greece' (Law No 4301/2014), after decades of political and legal discourse, was eventually published in the Government Gazette. This new Law constitutes a significant milestone, in the sense that it establishes a long-needed systematized legal frameowrk for minority religious organisations in Greece, and enacts, also for the first time, the creation of a coherent official registration system. The present article provides a thorough analysis of the relevant legislative provisions, and also considers the associated jurisprudence and case-law.

Catholic and Protestant Approaches to Law: some initial thoughts (Duddington, John) 59

It is intended to hold a conference on this in 2017 and the following thoughts are offered to prompt thinking and hopefully contributions to the journal on this topic.

Issue 177

Toasted? Christian bakers told to bake cake in support of same-sex marriage (Smith, Peter) 119

The Court of Appeal in Northern Ireland has upheld a first-instance decision against a Christian married couple and their bakery, finding their refusal to make a cake bearing a message in support of same-sex marriage was directly discriminatory on the grounds of sexual orientation and was in breach of prohibitions on discrimination on the grounds of political opinion. It also held that the claimant's right not to be discriminated against outweighed the bakers' rights under Articles 9 and 10 ECHR, and that these findings were compatible with the constitution of Northern Ireland.

ADR and the Kingdom of God: Appropriate Dispute Resolution for Christian Lawyers? (Hyde, Jonathan) 130

ADR is now commonplace in the resolution of civil commercial disputes in England and Wales and seems likely to become only more prevalent. This paper considers its ubiquity and proposes an analysis of the resulting advantages and drawbacks for Christian lawyers, suggesting aspects in which ADR should be welcomed but also outlining aspects in which it should be critiqued. In particular, this paper suggests how Christian lawyers have the opportunity to use ADR in fulfilling their calling as peacemakers, but that in doing so they should not lose sight of justice, and should engage with ADR distinctively in order to honour their God.

Conscience and Concordat: When Two Worlds Collide? (Costigane, Helen) 146

Resistance to taxation is by no means a new phenomenon though opposition by means of moral protest is a more recent development. Such opposition has occurred throughout the centuries against both civil and ecclesiastical authorities, and has resurfaced more recently in the ongoing debate on the German Church tax. This article looks at the question of 'conscientious objection' to this obligatory tax in the Roman Catholic Church. Beginning with the reasons why the Church needs 'temporal goods' (which includes such things as property and investments), there follows a consideration of the canonical aspects of the stewardship of such assets. The canonical obligation of members to contribute to the work of the Church is also outlined, followed by a look at the present position in the German Church, and what is happening when members 'de-register' to avoid paying the tax. Having considered what is meant by 'conscience' and 'conscientious objection', and what kind of protest is being made, some ways forward are considered as to how Church authorities might respond to the haemorrage of members and the protest that is being made.

Gilmour v Coats Revisited: a study in the Law of Public Benefit in Charity Law Today (Meakin, Robert) 157

Charities with purposes to advance religion have recently been challenged by the Charity Commission and the court over the extent to which their religious practices can be exclusive and to what extent members of a religion must engage with the public if they are to qualify as charities or places of public worship for rate relief. The leading case in charity law is Gilmour v Coats but that case was decided in 1949 and the legal landscape has changed following the abolition of the presumption of public benefit and the enactment of the Human Rights Act 1998. It has been accepted by the Government that the law of charitable status and religious charities is currently unclear. There are also doubts raised by the author about whether the Gilmour v Coats case was correctly decided. It is a timely moment to revisit the case and challenge the Charity Commission's approach to public benefit for religious charities and the authority of Gilmour v Coats.

The Sharia Law Debate: The Missing Family Law context (Sandberg, Russell & Thompson, Sharon) 181

Two official enquiries and one Private Members Bill are currently grappling with the ever-controversial topic of the operation of sharia tribunals in England and Wales. While these developments are valuable in that there is still a missing evidence base in terms of Sharia tribunals, this narrow focus on Sharia misses the point that a wider reappraisal of family law matters is required. This article contends that the sharia debate points to wider concerns about two areas of family law in particular: the formalities concerning marriage and the privatisation of family justice. It concludes that concerns about sharia tribunals cannot be addressed without paying attention to wider family law developments.

Issue 178

Luther the Lawyer: The Lutheran Reformation of Law, Politics and Society (Witte Jr., John) 6

The Lutheran Reformation transformed not only theology and the church but law and the state as well. Beginning in the 1520s, Luther joined up with various jurists and political leaders to craft ambitious legal reforms of church, state and society on the strength of the new Protestant theology. These legal reforms were defined and defended in hundreds of monographs, pamphlets, and sermons published by Luther and his many followers from the 1520s onward.They were refined and routinized in hundreds of new reformation ordinances promulgated by German polities that converted to the Lutheran cause. By the time of the Peace of Augsburg (1555) - the imperial law that temporarily settled the constitutional order of Germany - the Lutheran Reformation had brought fundamental changes to theology and law, to church and state, marriage and family, education and charity.

How the Reformation Shaped Ecclesiastical and Secular Law in Great Britain (Cranmer, Frank) 37

The Reformation in England - unlike in Scotland - was primarily about governance rather than theology. Theological change came after the death of Henry VIII. As a consequence, its impact on Anglican church law was only gradual and by the time of the Act of Uniformity the Church of England was an ecclesiastical hybrid, with fairly Catholic liturgy alongside some rather Calvinist doctrinal statements - and Western Canon law continued in force unless consciously revoked, so the impact of the Reformation on Anglican church law was not either as profound or as immediate as one might imagine. Moreover, because the church courts continued to have both a civil and a quasi-criminal jurisdiction, the canon law had a considerable influence on the development of secular law in both jurisdictions: in England and Wales primarily through the doctrine of equity and the continuation of ecclesiastical jurisdiction over matters that are now dealt with by the secular courts and in Scotland as a primary source of Roman law principles that influenced the development of Scots law.

Taking the Queen's Shilling: The Implications for Religious Freedom for Religions being registered as Charities (Meakin, Robert) 57

There have been concerns recently about whether religions might have religious doctrines and practices challenged if they are registered as charities. Startling headlines like 'Christianity not necessarily for public good, says Charity Commission' have caused alarm. In the past the Charity Commission assumed that organisations with purposes to advance religion were charitable. Previously, with the presumption of public benefit, the Charity Commission and the court rarely looked at the question of public benefit. The definition of religion for charity law was much narrower too. Both of these factors fostered a largely passive and non-evaluative approach by the court and Charity Commission in respect of the doctrines and practices of religious charities. Following the removal of the presumption of public benefit and the new wider statutory definition of religion for charity law the Charity Commission has taken a much more proactive approach to evaluating whether religions qualify for registration as charities. The question arises whether the Charity Commission can lawfully question religious doctrine and practice for the purposes of registering or removing charities from the register. This article looks at possible grounds to challenge the Charity Commission, including the common law principles of non-justiciability, religious toleration, charity law (public benefit and the definition of religion) and human rights.

Church of England Clergy and Employment Law (Forde, Barry) 80

This article notes the different constitutional background which exists in both Northern Ireland and in the Irish Republic as compared to the UK and how it affects the relationship between church and state. It then considers the law on the employment status of the clergy in the Church of Ireland against this background. It first outlines the tests for employment status used by the UK courts and then considers the case law in this area and then looks at the position in the Church of Ireland. It concludes by arguing that: 'The time has come for the Church to navigate a way through this haze of ecclesiastical regulation and civil law' and seek to devise a way of giving employment protection rights to the clergy of the Church of Ireland.

Issue 179

Approaches to Law: Catholic and Protestant (Helmholz, Richard) 117

Martin Luther's harsh words about the place of law and lawyers in the Christian life and in the Christian church have had a lasting effect on the modern understanding of the differences between Catholic and Protestant views of the subject. A closer look at evidence from the two hundred year period after 1517 shows that Luther's attitude was not in fact characteristic of most Protestant thought about law's place in Christian society. This essay examines three specific topics relevant to this subject: 1) the place of natural law in religious thought about law; 2) the role of discipline and legal sanctions in a Christian society; and 3) the use of legal authorities in shaping the church's law. All three demonstrate the existence of a common attitude towards law and legal practice, one which was shared by both Catholics and Protestants.

Catholic and Protestant Approaches to Human Rights (McIlroy, David) 135

Both the Catholic Church and the major Protestant churches endorse the idea of human rights. There are, however, significant Catholic and Protestant thinkers who argue that it is a mistake to regard human rights as a fundamental feature of the moral order. John Finnis has argued, from a Catholic perspective, that human rights are nonetheless a part of a Christian understanding of the common good, while Nicholas Wolterstorff has defended, from a Reformed perspective, the primacy of human rights as a means of giving voice to the victims of injustice. It is philosophical, rather than theological, differences which animate the current debate among Western Christian theorists.

Preston: another lap of the circuit or a signpost? (Hicks, John) 159

The course taken by the title case is traced, and the action being taken by the Methodist Church in its aftermath described, in order to illustrate the suggestion that churches which wish to maintain the position that their clergy are not employees should consider taking advantage of the fact that in law an essential element of the formation of a contract is intention to create legal relations, and that in the absence of an unravelling factor such as fraud or mistake the courts cannot go behind a clear expression of the contrary intention, in the way that once a contract exists they can and do go behind a statement that it is not one of service.

The Rule of Law and the Church in Wales (Glyn Watkin, Thomas) 171

At disestablishment, the Church in Wales acquired a Constitution framed by three distinguished judges - Lord Sankey, Lord Atkin and Lord Justice Banks. The institutions and structures which they created showed great foresight, together with respect for and awareness of the need for fairness, naural justice and the rule of law in the Church's governance. More recently, changes have been made to the structures which they created which do not appear to recognize that administrative convenience is but a poor substitute for fairness and natural justice, and at times may even be contrary to the rule of law. The forthcoming centenary of Disestablishment may well be an appropriate moment to consider whether justice and the rule of law are nowadays present and sufficiently transparent in the Church's institutions and governance.

Reasonable Accommodation for Religion in Employment and Provision of Services (Cranmer, Frank) 187

This article seeks to review the present law on dsicrimination in employment and, in particular, the extent to which there should be a concept of reasonable accommodation of religious belief on the same lines as for disability discrimination. The conclusion reached is that the concept of indirect discrimination is sufficiently nuanced to deal with this issue but that in fact the matter is by no means settled.

Issue 180

The Vulnerability of God and Humanity (Herring, Jonathan) 5

This article explores the nature of God and of humanity. It argues that human beings tend to picture God as all-powerful and all-knowing. The law tends to assume that the norm for people is that they are competent, autonomous and self-sufficient. It promotes legal values that are suitable for such an image of humanity: rights of autonomy, privacy and bodily integrity. However, this article argues that both of these understandings are flawed. The reality is that human beings in their nature are profoundly vulnerable; are dependent on others for their well-being; and lacking capacity. It argues the law should adapt the image of vulnerable, caring and independent relationships as the norm around which legal regulation is based. Further, it argues that as God made people in their own image, we should understand God as vulnerable and interdependent.

The Time for Legal History: Some Reflections on Maitland and Milsom fifty years on (Sandberg, Russell) 21

2018 marks the fiftieth anniversary of the publication of the re-issued second edition of Pollock and Maitland's The History of English Law. The first edition was published in 1895 with a second edition in 1898. The 1968 reissue was important because, although the text itself was not revised, a lengthy introduction and select bibliography was added by S. F. C. Milsom. This and subsequent publications by Milsom developed a number of revisions of Maitland's work which Milsom referred to as his 'heresy'. Given the fiftieth anniversary of the reissue and Milsom's death in 2016, it seems timely to reflect upon the legacy of both of these legal historians and the future of the historical study of law in general and the study of the interaction between religion and the law in particular. The objective here is not to provide a detailed appraisal of the lives and work of Maitland and Milsom; for that the reader can look elsewhere. The aim of this reflection is to suggest that the answers for bringing about the resurgence of historical approaches to law can be found in the very reasons for Legal History's decline and that the work of Maitland and Milsom provide often unappreciated inspiration here. It will further be argued that historical approaches to law should not be the preserve only of legal historians but that the historical method should be part of the legal academic toolkit and that this is especially important for those who research the interaction between religion and the law.

Blessed be the Amending Hand (Duddington, John) 38

In this 500th anniversary year of the birth of Edmund Plowden and 50th anniversary of the establishment of the Edmund Plowden Trust, which publishes this journal, it is appropriate to examine Plowden's contribution to the development of English law and to see if any abiding principles can be gathered from what he wrote which are still of service to the Christian lawyer today. This article argues that an examination of the life of Plowden, although a subject worthy of study in itself, must not obscure a parallel examination of his legal thought and that, through his celebrated aphorism 'blessed be the amending hand' and for other reasons, not least his celebrated series of law reports, he has much to teach us.

Exorcism and the Law: Are the Ghosts of the Reformation Haunting Contemporary Debates on Safeguarding versus Autonomy? (Garcia Oliva, Javier and Hall, Helen) 51

This article explores how secular and Canon Law on exorcism have evolved in tandem in England, each subject to the influence of the other, as well as wider cultural changes. It considers how the historically cautious and strictly regulated approach of the Church of England still influences the legal contemporary framework and explores how the present day judicial approach in this jurisdiction contrasts with other contexts in the Common Law world.

A Veiled Threat (Doomen, Jasper) 82

The freedom to manifest one's religion is laid down in article 9 of the European Convention on Human Rights and is to be observed by all states party to it. The margin of appreciation granted to them leaves some room to decide whether legislation should be realized to restrict this freedom. I address the issue that in some cases such room may be too ample. A recent ECtHR case, Belcacemi and Oussar v. Belgium, is used to illustrate a number of problems with which individuals seeking to enjoy their freedom of religion, such as expressing it by wearing a full-face veil in public, are confronted. Specifically, while the separation of Church and State may be defended on grounds of principle, one must be wary of unwarranted restrictions on individuals' freedoms that are realized under its banner. Such restrictions become apparent most clearly in the demand to 'live together' (as this is understood by the state).

Issue 181

Cake, Compelled Speech, and a Modest Step forward for Religious Liberty: The Supreme Court Decision in Lee v Ashers (Hambler, Andrew) 156

This article considers the Supreme Court judgment in Lee v Ashers and its rejection of the sometimes creative application of direct discrimination of the earlier judgments in the case, noting the preference of the court for a more restrictive interpretation of concept. It further discusses the notion of compelled speech which the Supreme Court identified as important in the case, and its relationship to relevant articles of the ECHR, before moving on to consider the importance of the judgement from a religious liberty perspective, and in the content of a series of recent cases where a religious claims have often been defeated. It concludes that Ashers is an important and welcome decision but that its impact on religious discrimination law should not be over-stated.

Equality, Discrimination and Ecclesiastical Personnel (Grout, Christopher) 171

The employment status of the clergy and other ecclesiastical personnel is something which continues to attract considerable attention both in tribunals and courts as well as in academic journals. The enactment of the Equality Act 2010 has had significant implications for employers. Organised religions, of which the Church of England is of course one, are not exempt from its provisions. The Act seeks to prevent discrimination on the basis of nine specified characteristics. What follows is an analysis of three of those characteristics, namely sex, sexual orientation and marriage and civil partnership. That these particular characteristics have been chosen for analysis is no accident. Schedule 9(2) to the Act creates specific provision relating to religious requirements concerning these characteristics. In short, where the employment is for the purposes of an organised religion, requirements which relate to sex, marriage and sexual orientation will not constitute discrimination for the purposes of the Act where they engage the 'compliance or non-conflict principle.' What these principles mean and how they might operate in practice is discussed below by asking what the canonical and theological justifications for discriminating against certain individuals are and how such justifications are likely to engage the provisions of the Act. The secular courts have, very recently, had to grapple with how the position of the Church of England vis-a-vis same-sex marriages justifies reliance on the Schedule 9(2) exception in circumstances where a Canon's Permission to Officiate was revoked following his marriage to his same-sex partner. The case of Pemberton v Inwood is discussed, albeit briefly, in what follows. Undoubtedly, this continues to be a developing area of law and one which will, from time to time, highlight tensions between the State's aim to protect individuals from discrimination and the rights of organised religions to uphold and protect their respective up theologies and doctrines.

Christopher St German's: A Discourse of the Sacramentes Howe Many There Are (Johnson, Michelle L.) 189

The reform-minded thinkers of 1530s England, whilst not repudiating biblical law, impelled a rethinking of the role of the state in legal creation and reshaped the conduit through which biblical law was brought into the secular world. Biblical law was domesticated and filtered through an interpretive system through which the King and Parliament now played the central role. The early modern common lawyer (better known for his Doctor and Student) Christopher St German's 1537 manuscript entitled A Discourse of the Sacraments represents an important investigation into the central questions of kingly (and parliamentary) versus ecclesiastical authority in defining the nature of the sacraments. Previously unpublished, this article provides for the first time an associated transcription of the work by this author (available separately here) and considers St German's distinctive approach to the central questions of state versus church-based authority as triggered by the Henrician Reformation, whilst also exploring his approach within the context of his earlier works. St German denounces papal, clerical and general conciliar authority in matters concerning the naming and identification of the sacraments and firmly situates this authority with the king and parliament. St German's text predicts and narrates what law is becoming and will be, whilst asking the foundational question: 'what is law and how does it relate to fundamental belief?'

Catholic Schools and the Admissions Cap (Barber, Paul) 207

This article gives the background to the decision of the Government in May 2018 to retain the 50% cap on faith-based admissions for free schools. It considers the historic role of Catholic schools in promoting community integration, and then moves on to consider the creation of Academies as a necessary prelude to understanding the impact of the 2010 Coalition Agreement (which introduced the 50% Cap) and its impact on school admissions. It traces the recent developments on a policy level up until the most recent announcement in May 2018 that the Cap would be retained. It concludes by arguing that the retention of the Cap continues to fail to achieve any of its stated policy objectives.

Issue 182

Euthanasia, Withdrawing Treatment and the Concept of Intention (Wee, Michael) 7

It is commonly thought that the concept of euthanasia must include an element of intentional killing, along with a motivation to end suffering. But where death is brought about by an omission rather than an act, there is greater difficulty in determining intentions and moral culpability. Furthermore, the distinction between euthanasia and withholding treatment is less clear when the ethical principles for withdrawing treatment have been misapplied. This article seeks to bring clarity to this problem by analysing examples of such cases in order to demonstrate how moral errors about withdrawing treatment, such as an under appreciation of the value of human life, which leads to a mistake about what counts as 'futile treatment,' or a misunderstanding of how grave the obligation to preserve life is, do not necessarily involve an intention to end life and therefore are not euthanasia in the strict sense. Particular reference is made to the cases of Charlie Gard and Alfie Evans where, despite the deeply flawed manner in which the High Court made its decision, the intention to end life was arguably absent from the respective judgements.

The Legitimate Expectation of Diocesan Clerics in Catholic Canon Law (Ombres, Robert) 25

One of the most important mechanisms to express in Catholic Canon law the bonds between the diocesan bishop and some of the clergy is incardination. Incardination embodies a whole set of values, it coordinates various duties and rights as between bishop and clergy, and it has many repercussions. From time to time, the secular courts as well as Church authorities have had to consider the status of the incardinated clergy, prominently so in situations of clerical sexual abuse of minors. This review-article presents the hugely detailed and accomplished study by Dr Edward Morgan, entitled 'Fathers and Brothers: The Legitimate Expectation of Diocesan Clerics in the light of Canon 384 of the Code of Canon Law.' There is a constant interplay between Catholic theology and Canon Law on the one hand and the Common Law on the other, with an emphasis on actual cases. The regulatory system of the United Kingdom's General Medical Council is considered as a helpful point of comparison.

Charity Law Aspects of the Sex Abuse Crisis in the Catholic Church (Meakin, Robert) 37

This article explores the problems arising from claims alleging sexual abuse brought against the Roman Catholic Church. It begins by outlining how priests can now be regarded as employees for the purposes of vicarious liability and then goes on to examine the mix of Canon law and Civil law provisions governing which person or body can be held liable. It then looks at the duties of trustees in these cases and at the fact that charity law arguably forces the Church to look at ways of avoiding or mitigating liability to protect charity assets. Having examined the scope for possible conflict of interest the article concludes by noting that the sex abuse crisis exposes the tension between the Church in its pastoral role and as a trustee of charitable property.

R (ota Humanists UK) v Catholic Education Service [2018] EWHC 3427 (Admin): The Law on the Employment of Teachers in Voluntary Schools and Academies (Barber, Paul) 49

This article looks at the extent to which the law allows in effect an exception to the law on religious discrimination when appointments are made of teachers to voluntary schools and academies. It traces the origins of the present law to the Education Act 1944 and then looks at the present position in the light of the general prohibition on discrimination in employment on religious grounds contained in the Directive on Equal Treatment in Employment and Occupation (2000/78/EC) and the Equality Act 2010. It then turns to the (unsuccessful) challenge to the present law mounted by the Humanists UK in the above case.

The Vulnerability of God: a reply to Jonathan Herring (Fox, Helen) 58

This reply looks at the theological difficulties raised by the suggestion that God is vulnerable but also at how an awareness of human vulnerability could impact positively on the justice system.

Issue 183

Aquinas on the Unfolding of Law (Conrad, Richard) 118

So as to set the scene for this collection, I note the place Aquinas accords law in the scheme of things, and that it is an act of reason, to be received rationally. I set out the kinds of law Aquinas recognised: Eternal Law, God's ordering Wisdom, from which other laws derive; Natural Law; human law which applies it to changing social realities; and the 'Divine Law' God posits in Scripture. Natural law 'unfolds' in a hierarchy of precepts; making the more detailed ones explicit is a co-operative task of the wise, a task made harder by humanity's sinfulness. Besides directing us to a divine goal which nature cannot attain, Divine Law, in its Old Testament form, reminds us of natural law precepts that are or should be obvious and contains some more detailed Natural Law precepts. I mention the ways laws may change, which subsequent papers will enlarge on. Aquinas does not give a full answer to the question 'May Natural Law change?' as it might be heard today. Hence I ask whether, at the interface between Natural and human law, humanity is still formulating 'secondary' Natural Law precepts, a task that fresh engagement with the Torah may assist.

Of Course Human Law Develops: Can Natural and Divine Law Develop? (Budziszewski, J.) 134

According to Thomas Aquinas, human law can develop over time in several ways. It might seem that although our understanding of natural and divine law can become better or worse, natural and divine law themselves can never change in any way. This turns out not to be the case. St Thomas's account of the matter gives no comfort to relativists, for God's eternal Wisdom cannot improve, nor can human nature change in essence, and the Ten Commandments cannot be revised or repealed. Yet in surprising ways, St. Thomas maintains that change and development are realities in both natural and divine law.

The Tasks of Human Lawgivers: The Torah as Exemplar (Conrad, Richard) 155

The previous papers have explored how Natural Law might 'develop' and how human law derives from it. Here we focus on Aquinas' account of human legislators' role. Besides applying Natural Law to changing conditions, they must seek to apply better. In doing so, it seems they and their advisers may discover - or at least formulate more explicitly - Natural Law precepts of a 'secondary' kind. The Torah offers exemplars for legislators and their (priestly?) advisers, plus examples of 'judicial precepts' derived from the Natural Law and suited to current conditions; in some ways these challenge Aquinas' and subsequent societies. We now know that the Torah was built up gradually. The varying laws concerning slavery seem to show human authors seeking to restrain an institution that had developed, and doing so with a prudential combination of theological, humane idealism, and realism. Arguably, the trajectory they launched was fulfilled when at last it was articulated that slavery is, in principle, against Natural Law. This seems to exemplify Aquinas' account of human legislators' vocation to explicate the Natural Law more fully.

When Should Human Law Change? Assessing Legal Code (Meade, Ryan) 176

This article considers legal codes promulgated by human authorities, rather than common law. It enquires when codes need to change in procedural or more substantive ways. The question implies criteria exist, and these are criteria of justice. If Justice essentially involves right relations among persons, it must accompany the means by which law is changed, as well as being the goal of change. By contrast with positivist definitions, St. Thomas sees law as 'an ordinance of reason for the common good, made by him who has care of the community, and promulgated.' This provides four criteria for a just law; a code that fails any one of them should be changed. Promulgation fails when a code's meaning is unclear, or it is unmanageably long and detailed. The requirement 'made by one who has care of a community' calls into question regulations made by private companies that have the force of law. Codes can fail the test of reason by being contrary to human nature or justice, or by being made hastily. The common good, as the groundwork for truly human flourishing, constitutes an especially important criterion for when a law is good, or should change.

Issue 184

Why Can't We Stop Pretending Law Has Anything to do with Justice? A Critical Natural Law Theory (McIlroy, David) 7

Law and justice cannot be divorced and yet remain forever at a distance from one another. Although the legal positivists regarded natural law theories as giving too great a reverence to law's claims, Augustine of Hippo used the idea of natural law to offer a sharp critique of the legal systems of his day. Such a natural law theory can expose where the justifications for laws and legal systems fail in their own terms, where they do not take account of the injustice to those not treated as their subjects, and where they offered false visions of reality.

Making a Critical Natural Law Theory a Bit More Critical: A Response to David McIlroy (Van Drunen, David) 25

David McIlroy presents an insightful account of law, justice and critical natural law theory. This account includes a sustained critique of legal positivism's attempt to define law without reference to justice. McIlroy's account could be further strengthened, however, if it included critical engagement with positivisms monocentric conception of law. A polycentric conception better describes law as it functions in this world and it also eliminates the strong, but nuanced, relationship between law and justice that McIlroy promotes.

Moreover, McIlroy's account of law and justice, especially as supplemented with a polycentric understanding of law, suggests that the Covid-19 pandemic has produced a legal crisis as well as a health and economic crisis.

Challenging the Right to Offend Religious Sensibilities in the Face of Foreseeable Harm (Hill, Ryan) 37

Using the work of TM Scanlon, along with decisions of the European Court of Human Rights, this paper argues that offensive expressions which carry a real risk of triggering a chain of events likely to lead to avoidable and substantial harm call for an adequate review process to be applied. This review is of both a deliberative and a critical nature. As such, it applies to the expresser contemplating the expression while also providing a basis for others to critique the expresser's actions should they decide to proceed and make the expression. The argument engages with the role of intention, the relevance of the Double Effect doctrine and the potential problems in determining permissibility where law would seem to allow the expression to go ahead. It concludes that a review of the nature set out better attunes with 'duties and responsibilities' under the right to freedom of expression in law than current legal practice does.

A Journey of Hope: a Catholic Approach to Sentencing Reform (Allmark, Liam) 58

'A Journey of Hope' is a seminal document on sentencing reform from the Catholic Church in England and Wales. It was produced by the Bishops' Conference, with advice from politicians, members of the judiciary, senior prison staff, people who have been in prison, charity representatives, chaplains and victims of crime, against the backdrop of a recognition that as a society we are 'locking up far too many people than we can reasonably care for or help to turn their lives around.' The document develops and updates positions previously promoted by the Church, particularly in 'A Place of Redemption', while also introducing new political and pastoral aspects to the Church's vision of a smaller prison population and more humane criminal justice system.

Issue 185

Bostock v Clayton County and Religious Liberty (Waltman, Jerold) 110

Bostock v Clayton County Georgia, along with its two companion cases, arose under Title VII of the Civil Rights Act of 1964, presenting the Supreme Court with one of those knotty problems of statutory interpretation. From a purely legal perspective, therefore, the issue was a highly technical one. Nevertheless, because it involved a controversial matter, the rights of LGBT and transgender people, in this case specifically their rights regarding employment, it had rather far-reaching implications. This article contrasts the majority and minority approaches of the Supreme Court judges and looks at the implications of this case for religious employers and businesses run by religiously faithful people. It also analyses the case law around the Free Exercise clause of the First Amendment in the US Constitution in the light of this decision.

Freedom of Expression and Freedom of Religion in the Context of the Transgender Debate (Grout, Christopher) 121

The debate concerning the rights of transgender individuals is a very public one. It manifests itself throughout the mainstream media and is often a hot topic for discussion (sometimes constructive, but often not so) on social media platforms such as Twitter. The courts have had to grapple with transgender issues in a variety of contexts and across jurisdictions - civil, family and crime. This article focuses on the impact issues concerning transgender rights have had in the context of freedom of expression and freedom of religion. Both these rights are protected under the European Convention on Human Rights and the courts have, over the years, become all too familiar with trying to balance them in a range of different circumstances. In recent years, however, the enactment of legislation which is sought to protect and advance transgender rights has resulted in a new type of clash which courts are required to resolve, with transgender rights on one side and freedom of expression and freedom of religion on the other. This article, in examining the transgender debate, looks at some of the recent judgments issued by courts and tribunals in England and Wales with a view to exploring how judges have sought to balance competing rights and the outcomes that have followed.

What St Augustine of Hippo would say about Law today? (McIlroy, David) 140

Augustine insisted that there is an objective morality (a natural law) to which all human activity (including all law-making activity) is answerable. He argued that any system of justice is, in the end, a system for promoting and protecting certain common objects of love within a society. He regarded legal systems as having only limited authority and only limited ability to promote virtue. Augustine's killer question: "What's the difference between a kingdom and a band of robbers?" exposes the need for every legal system to be challenged in the name of truth and on behalf of those whose voices are treated as worthless. These big claims continue to provide resources for a critical natural law theory today.

Non-Religious Belief in Charity Law: Time for a Rethink? (Meakin, Robert) 155

This article looks at the meaning of non-religious belief in charity law. There has been little commentary on the subject and yet "religion" is defined in the Charities Act 2011 as including a religion which does not involve a belief in a god. There is therefore a need to know what would qualify. The Charity Commission has attempted to narrow down the definition of religion in charity law through a number of its decisions by setting a criterion to qualify, including the requirement to practice worship. This restricted approach to religion has prevented there being a development of what could constitute non-religious belief. The article therefore explores what might qualify and discusses the problem areas.

Issue 186

Covid 19, Good Friday 2021 and the Metropolitan Police (Cranmer, Frank) 4

An analysis of whether it was lawful for the police to interfere with public worship.

The Constitutional and Political Theology of Ernst Wolfgang Böckenförde (Steenvoorde, Richard) 10

This article introduces the constitutional and theological thought of the German scholar Ernst-Wolfgang Böckenförde (1930 - 2019) whose writings have recently been translated into English and were published in two volumes by Oxford University Press. After presenting a short introduction to the person and his historical context, I will focus on three topics: the relationship between Böckenförde's thought and Carl Schmitt (1988 - 1985); Böckenförde's resistance against a value-based grounding of law; and finally his reflections on a theology of modern secular law.

Circumcision in Modern European Society and the autonomy of religious organisations (Prodger, Rebecca) 20

This essay reflects on the issue of administering religious infant circumcision within modern European Society and the balancing act required of courts under the legal arch of Article 9 of the European Convention on Human Rights, which provides that the right to manifest religious beliefs can be justifiably limited where the limitation is prescribed by law, has a legitimate aim and is necessary in a democratic society. In order to make the decision necessary within democratic society, courts must ensure they balance all the rights involved in the administration of religious circumcision in male infants including the principle of personal autonomy and the principle of religious freedom and organisational autonomy. The discussion focuses mainly on the approaches of courts within the English and Welsh jurisdiction and reviews the way courts apply the best interest test to decide if an action is within the best interests of the infant whilst also ensuring that the decision is necessary in a democratic society. Rights within the European Convention on Human Rights that courts will generally focus on include the article 9(1) right of the child to freedom of religious choice and the article 8 rights of the parents of the child to parent their child without interference. The discussion also focuses on the issue of harm and the possible engagement of article 3. Under this review, the discussion also looks at the argument of necessity and the idea that even if the practice does not constitute a level of harm severe enough to engage article 3, its limitation will force the practice underground where, due to lack of regulation, it may become harmful enough to meet the threshold. The discussion finally turns to a review of the harm that total limitation of administration can have on a religious organisation's freedom and perception within society and the harm this can cause to democratic social order.

From Yesterday to Today: The Continuing Debate on whether we should Abolish the Oath (Bartle, Ronald and Kennedy, Michael) 39

A reprinted article by Ronald Bartle followed by some reflections by Michael Kennedy QC on whether the oath should be abolished.

Issue 187

Covid 19 and Religion in the United Kingdom (Cranmer, Frank & Pocklington, David) 96

In October 2020, as part of a Europe-wide review, we published an article in a Spanish law journal on the impact of the COVID-19 pandemic on faith communities in the United Kingdom which traced events from the inital outbreak until October 2020. The earlier part of this article draws heavily on that text. Legislation, case law and a UK timeline are included.

Religious and non-religious belief in charity law (Pollock, David) 121

This paper uses the history since the 1960s of organisations representing non-religious beliefs such as Humanism to explore the errant application of charity law, tracing it to its origins in the 1601 Statute of Charitable Uses and draws on my own experience with Humanists UK in attempting, over many years, to secure changes in charity law. It critiques the long-standing culturally biased definition of 'religion' in charity law, describes rejected proposals by Humanists UK for a neutral definition that would embrace both religious and non-religious beliefs, and shows how recent legislation and litigation have produced a superficially equal regime for religious and non-religious beliefs - one, however, that is undermined by the law on public benefit which, despite Parliament twice legislating that there should be no presumption of public benefit for any category of charity, persists as a result of questionable court rulings and timid compromises by the Charity Commission in preserving that presumption for religious charities. Finally the paper questions the justification for charitable status (for which read public subsidy) for any organisation whose principal purpose is to promote a belief, religious or non-religious, arguing that many such organisations in fact produce no public benefit but often the opposite and that most could justify charitable registration under another head without undue difficulty.

Issue 188

Reasonable Adjustments vs Indirect Discrimination: are all protected characteristics equal under the UK Equality Act 2010? A review of religious and disability discrimination in employment cases (Bacquet, Sylvie & Bunbury, Stephen) 6

This article argues that religious manifestation, like disability, requires an individual model of discrimination aimed at inclusivity rather than formal equality. It compares the current legal framework for assessing religious discrimination in the workplace (indirect discrimination) to the disability law framework (reasonable accommodation) and argues that while indirect discrimination is well-suited to group discrimination, it does not lend itself to manifestation of belief which by nature requires a different form of equality that takes into account individual differences. The reasonable accommodation approach used for disability discrimination places a duty on the employer to take steps to remove any barriers preventing individuals from taking part in society and, as such, consists of treating individuals differently rather than aiming for strict / formal equality. We argue that the reasonable adjustment duty used in disability discrimination should now be extended to manifestation of belief in the employment sector. This would encourage employers to proactively remove barriers faced by religious minorities whose religion or belief mandates a particular practise or dress code. As a result, an employer would be forced to take a pro-active approach to removing any barriers faced by religious minorities. In turn this may prevent individuals having to compromise between following their conscience or the rules set out by the employers.

"Why is it so much Agony to Remove a Memorial to Slavery?": the Rustat Judgment (Cranmer, Frank) 21

Because of Tobias Rustat's associations with the slave trade, Jesus College wished to relocate his memorial from the College Chapel to an exhibition space. Because the College had opted into the faculty jurisdiction, it was obliged to apply for a faculty to authorise the removal and relocation - and the application was rejected. What follows attempts to explain the background, summarise the judgement and offer a critical analysis of its possible implications - if any.

The Seal of Confession (Read, Gordon) 28

This article explores the origin and understanding of the 'seal of confession' in the sacramental practice and Canon law of the Roman Catholic Church. For most of the First Millennium there was no clear distinction between the sacramental forgiveness of sins and the external discipline of excommunication. By the 13th century the discipline had developed into its current form. The Fourth Lateran Council regulated this and set out the level of confidentiality to be observed in Canon 21, 'Omnis utriusque sexus' (everyone of both sexes). Failure to observe confidentiality leads to excommunication of the priest hearing the confession. The primary rationale is that hears the confession as 'God's ears' and has no 'human' knowledge of what has been said. There is also a more general argument for confidentiality so that the penitent can speak freely. The article then explores questions airing such as the obligations of those overhearing a confession, whether use can be made of information gained in the course of confession and whether the penitent can permit the confessor to disclose what has been said.

The Unexpected Benefit of Hindsight: Reassessing the Legal Importance of the Black Death from the Vantage Point of the Covid Pandemic (Sandberg, Russell) 38

Historians are usually critical of hindsight but this article suggests that sometimes it can have in an unexpected benefit. Sharing a similar experience faced in the past can afford a greater appreciation of that experience, especially if subsequent historians did not have that experience. This article suggests that our experiences of the Covid pandemic can enrich our appreciation of the legal significance of the Black Death in the 14th century and which can serve as a useful comparator to the effects of the recent Covid pandemic. It revisits work on the main legal effects of the Black Death - and the thesis put forward by Robert Palmer that stress is its transformational impact upon law and governance - in the light of the experiences of the Covid pandemic (so far). It asks what can be learnt from this comparison in terms of understanding legal change in both the 14th and 21st centuries.

A Bill of Rights to replace the Human Rights Act (Parker, Nigel) 51

An extract from the submission of the Catholic Union of Great Britain to the consultation exercise concerning this Bill.

Issue 189

Alasdair MacIntyre's Critique of Human Dignity: A Response (McCrudden, Christopher) 110

The meaning and function of 'human dignity' remains much debated and deeply contested, not least because it has become central to human rights. The renowned philosopher, Alasdair MacIntyre, has recently entered the fray, adopting a sceptical view of the understanding of the human person as intrinsically valuable, often considered to be the core of human dignity. This article analyses MacIntyre's argument, challenges his conclusions and identifies what is at stake in the debate.

Confession in the Anglican Church - Breaking the Seal? (Deadman, Richard) 126

This article briefly traces the residual presence of the Seal of the Confessional in the Church of England after the Edwardine Reformation prior to its modification in the Canons of 1603/4 and then the resurgence of interest in the issue during the Catholic Revival of the nineteenth century; and the provisions made in response to this over the next hundred years or so. This is then set in the context of the wider Anglican Communion and the various approaches to the seal reflecting the varying weight placed on the inherited tradition by different provinces. It then proceeds to consider whether the seal is or would be respected by the temporal authorities in some of the jurisdictions in which the Anglican Church is present - particularly the complex questions raised by the established status of the English Church and its law. It notes the considerable pressure on the seal in some jurisdictions following reports of the child abuse scandals and the part that they assign to the seal of the confessional in encouraging the continuing abuse of children and vulnerable people. It then considers the response of the Australian church and the possibility that England may follow suit in qualifying the seal, questioning whether a qualified seal is a seal at all.

The Penal Consequences of the Violation of the Seal of Confession (Poland, John) 142

This article examines the various elements involved in the offence, or the delict, of the violation of the seal of confession in the Canon law of the Latin (Catholic) Church. It looks at issues relating to the subjects of the delict as well as the object of the offence, the imputability involved and the penalties which are incurred. Some of the questions and issues raised are intended to be speculative in nature, and the commentary offered draws on matters raised by commentators on the delict in the 1917 law, and the law of the Corpus Iuris Canonici. For this reason, the analysis is largely historically based, with references provided for future research.

Law as the Calling of Human Nature: the Theology of Law of David W. Opderbeck (McIlroy, David) 157

David Opderbeck is a major new voice in the field of theology of law. He is a Presbyterian with a theological approach rooted in an analysis of the mediaeval period and in Patristics as well as in Reformation thought. This article looks at two of his books which present the outlines of a wide-ranging Christian vision for law, rooted in the scriptures and tradition but brought to bear on key presenting and cutting edge issues in society and legal theory.

Issue 190

Dobbs v. Jackson Women's Health Organization & the Future of Other Rights? (Waltman, Jerold) 8

From one perspective, Roe v. Wade, the 1973 Supreme Court decision establishing a constitutional right to an abortion, was part of a line of cases laying out rights regarding marriage, sexual relations and reproduction. All of these are, of course, unenumerated rights, based largely on a generalized right to privacy. With Roe now overturned, a natural follow-up question is whether these other rights will also be affected. The three dissenters in the Dobbs case paint a bleak future for these other rights. Justice Alito, the author of the majority opinion, was careful to argue the opposite: that abortion was unique among privacy rights. This article sets Roe and Dobbs within the context of these cases, then assesses what the future may hold for the rights they enunciate. The conclusion is that all things considered, these other rights will probably stand.

Bad Rabbis: Clergy Discipline in a Jewish Contect (Kanter-Webber, Gabriel) 17

Misconduct by clergy is a problem that afflicts all faith groups. In Judaism, however, there is no coherent system of clergy discipline, and, in particular, no system for 'defrocking', that is, for the removal of rabbinic status. This article sets out the nature of rabbinic ordination and the history of defrocking within Judaism.

The Trial of the Cock Lane Ghost: Criminal Law, Religious Orthodoxy and Social Values in Enlightenment London (Garcia Oliva, Javier & Hall, Helen) 40

This article examines why systemic prejudice against Methodism within the Church of England resulted in a criminal prosecution and conviction in relation to promoting belief in ghosts in one instance, and yet did not generate any action in respect of an unsanctioned exorcism shortly afterwards in the same location. It also asks whether any of the causative factors behind the differential treatment might have relevance to societal and legal responses to claims about supernatural phenomena in the XXI century.

The Functions of the Principle of Dignity in Anti-trafficking Adjudication (Haynes, Jason) 62

Human trafficking poses a major security threat to countries worldwide and is a major human rights concern for governments and courts globally. Not withstanding the existence of a wide range of international instruments aimed at combating human trafficking, including the Palermo Protocol, courts at the supranational and domestic levels are constantly confronted by lacunae in the law and/or interpretive difficulties arising from the application of the law to the quickly evolving dynamics of human trafficking for which legally defensible solutions are necessary. One of the solutions that courts have increasingly explored in the context of anti-trafficking adjudication is the principle of human dignity. This paper argues that the principle of dignity serves expressive, interpretative and application functions in anti-trafficking adjudication, though it cautions that the principle of dignity is not a panacea, as it can sometimes operate in an indeterminate and unwieldy manner that may produce absurd results in certain cases.

Issue 191

The 14th Richard O'Sullivan Memorial Lecture: A New Great Awakening of Religious Freedom in America (White, John Jr) 119

Twenty years ago, American religious freedom was in trouble. The United States Supreme Court had weakened the First Amendment considerably, and religious freedom claims were often subordinated to sexual liberty and other rights claimants. States routinely denied funds and benefits to religious parties and removed traditional religious symbols and ceremonies from public life. Leading academics castigated religious group rights claimants given recent charges of sexual abuse and financial fraud in some churches. In 2000, religious freedom was a second class right.

No longer! The past decade has seen a great awakening of American religious freedom, led by the United States Supreme Court. In more than two dozen cases since 2012, the Court has strengthened the First Amendment to strike down public regulations and policies that discriminated against religion. It has granted religious individuals and groups exceptions from general laws that substantially burdened religious conscience and strengthened the autonomy of religious groups to govern their own polity and property. The Court has underscored traditional protections against religious coercion and state hostility toward religion. And it has built strong new protections for the religious worship of prisoners, students and teachers, and against state efforts to remove religious symbols, ceremonies and statuary from public life.

This article maps this new great awakening of religious liberty, but also warns about some of the ample challenges that remain. It argues that religious freedom is a precious gift of God to protect, not a prerogative of one political party to brandish, and it encourages people of faith to use this religious freedom wisely to love and serve all their neighbours, not least those of different faith.

Clergy Abuse: A Hard Path for Claimants (Tettenborn, Andrew) 138

The issue of the vicarious liability of churches and other religious organisations for abuse by officers and others is a complex one. It recently reached the UK Supreme Court in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB, where the scope of vicarious liability for deliberate wrongdoing was considerably limited by their Lordships. This article examines that decision, concentrating not so much on its effect on the law of vicarious liability as a whole, as on its ramifications and implications for religious bodies. It investigates in some detail not only the issue of when wrongdoing by a church officer will be regarded as in the scope of employment (or quasi-employment), but also the difficult question of the structure of religious employment, the issue of who is likely to be regarded as the liable employer and the practicalities of suits arising out of religious abuse.

Clergy Discipline in the Latin Church (Poland, John) 150

A contemporary overview is offered of the canonical tools and underlying principles found in the Canon law of the Latin Church (the church in communion with the Roman Pontiff governed by the 1983 code of Canon law as amended) pertaining to what can generally be described as a discipline of clergy. The article addresses the two broad areas of non-penal and penal discipline, and it starts with a brief look at the subjects involved, namely the cleric and the authorities competent for clergy discipline.

The Seminal Case of Butler-Sloss v Charity Commission: The Purpose of Capital (Fletcher, Luke) 167

The case of Butler-Sloss & ors v The Charity Commission for England and Wales & anor is now the leading case in relation to investment by charities. Charities exist to benefit the public and not to benefit themselves. The case therefore illuminates profound questions about the nature and purpose of capital, and in so doing provides us with insights which show how the law might be reformed and developed to guide and shape our economic system as a whole in a way that benefits everyone, rather than the interests of owners of capital.



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