Author Queries Journal: ELJ (Ecclesiastical Law Journal) Manuscript: ELJ_15_2_Book Review Q1 Please check that all names have been spelled correctly and appear in the correct order. Please also check that all initials are present. Please check that the author surnames (family name) have been correctly identified by a pink background. If this is incorrect, please identify the full surname of the relevant authors. Occasionally, the distinction between surnames and forenames can be ambiguous, and this is to ensure that the authors’ full surnames and forenames are tagged correctly, for accurate indexing online. Please also check all author affiliations.
Transcript
Author QueriesJournal: ELJ (Ecclesiastical Law Journal)
Manuscript: ELJ_15_2_Book Review
Q1 Please check that all names have been spelled correctly and appear in the correct order. Please alsocheck that all initials are present. Please check that the author surnames (family name) have beencorrectly identified by a pink background. If this is incorrect, please identify the full surname of therelevant authors. Occasionally, the distinction between surnames and forenames can be ambiguous,and this is to ensure that the authors’ full surnames and forenames are tagged correctly, for accurateindexing online. Please also check all author affiliations.
B O O K R E V I E W S
Religion, Politics and Law in the European UnionEdited by LUCIAN N LEUSTEAN AND JOHN T S MADELEY
Routledge, Abingdon, 2013, xv + 223 pp (hardback £95) ISBN:978-0-415-46627-1. Originally published as a special issue of Religion, Stateand Society, vol 37, issue 1–2 (2009)
In stark contrast with the situation of the founding European Communities,which were mainly, if not exclusively, a financial enterprise, religion hasbecome an important element within the context of the European Union inthe last two decades. Religion, Politics and Law in the European Union isdivided into four key themes: namely, religious identity, religious and politicalleaders, religion and law, and religious lobbies.
The first theme comprises five essays. In ‘European integration, laıcite andreligion’, Jean-Paul Willaime, interestingly, identifies laıcite as a Europeanvalue and claims that it should not be understood from an exclusively Frenchviewpoint. In ‘Religion: a solution or a problem for the legitimisation of theEU’, Francois Foret states that religion reveals the EU’s difficulty in dealingwith any normative reference. In fact, Foret rightly points out that, at times, reli-gious bodies, rather than being a force for reconciliation, have become undulynationalistic and this has become an obstacle to the process of European inte-gration. In ‘A European battlefield: does the EU have a soul? Is religion in orout of place in the EU?’, Carin Laundrup carries out a fascinating comparisonbetween the Council of Europe and the European Union, two institutionsborn in the aftermath of the Second World War. The author stresses that theformer has been, generally speaking, more successful and there is an almostunanimous recognition of the significance of this institution in the protectionof values and human rights, while the European Union, in contrast, hasstruggled to raise the same level of popularity and support in many socialcircles. In ‘From hammer and sickle to star and crescent: the question of religionfor European identity and a political Europe’, Benot Challand convincinglyargues that, in its process of reconstruction, Europe has always needed a‘rival’ in order to enhance its sense of common fate. This paper interestinglyreflects on certain biases of secularity and laıcite towards the dominant religionin various countries. In the fifth and last paper of the ‘identity’ theme, ‘Europeanenlargement, secularisation and religious re-publicisation in central and EasternEurope’, David Herbert and Max Fras look at the process of enlargement in thelast decade and the position of Poland, Hungary and Romania. The evidence
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suggests that religious influence in public life has grown in those three societiesbetween 1989 and 2007.
The second theme, ‘Religious and political leaders in the construction of theEuropean Union’, is composed of three essays. In ‘Cracks in a facade of unity:the French and the Italian Christian Democrats and the launch of theEuropean integration process, 1945–1957’, Linda Risso argues that ChristianDemocratic parties, traditionally regarded as staunchly Europhile, supportedthe integration process for very different reasons and to very differentdegrees. The author undertakes a valuable comparison between the positionof the parties in both Italy and France from the end of the Second World Warto the launch of the Common Market in 1957. In ‘Alcide De Gasperi andAntonio Messineo: a spiritual idea of politics and a pragmatic idea of religion?’,Giulio Venneri and Paolo O Ferrara examine, from an interdisciplinary perspec-tive, the parallel lives of a religious scholar who inspired a political leader withhis intimate religious convictions. Blandine Chelini-Pont, in ‘Papal thought onEurope and the European Union in the twentieth century’, focuses on the differ-ent views of several popes about European integration. This engaging paper con-cludes with Pope John Paul II’s views. The late pope defended the view that acommon Christian identity pre-existed de facto and was outside any institutionalunion. Metaphorically speaking, Europe was a ‘spiritual miracle’.
The third theme, ‘Religion and law in the European Union’, comprises twoessays. Norman Doe, in ‘Towards a “common law” on religion in theEuropean Union’, wonders whether there is a distinct legal category entitled‘EU law on religion’. His remarkable study proposes that a juridical approachprovides a concrete insight into the attitude of the EU towards religion. Doeidentifies the following key principles in the approach of the EU to religion:value of religion, co-operation with religion, religious freedom, religious auton-omy, religious equality, special protection for religion, and religious privilege. In‘Voices in the wilderness: the established Church of England and the EuropeanUnion’, Mark Hill examines the historical inheritance of establishment and theanomalous position of the Church of England. This paper also deals with theposition of religion within the European Union as viewed by its institutionsand by individual faith communities. In this thought-provoking contribution,the author concludes that the Church of England still has to find its voice inthe corridors of Brussels.
The last theme, concerning ‘religious lobbies’, is composed of three contri-butions. In ‘Religious lobbies in the European Union: from dominant churchto faith-based organisation?’, Martin Steven analyses the effects of integrationon traditionally privileged churches. In ‘The European Union and new religiousmovements’, Sabrina Pastorelli discusses how the European Union and theCouncil of Europe deal with new religious movements. Her contribution con-siders the case law of both the European Court of Human Rights and the
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European Court of Justice, while looking at the role of new religions in the‘transparent dialogue’ with the European Commission. Solid fieldwork hasbeen conducted to find out what new religious movements are dialogue partnersof the Bureau of European Policy Advisors. In the contribution, ‘The logic ofstructured dialogue between religious associations and the institutions of theEuropean Union’, Houston examines the provision for dialogue with religiouscommunities, finally recognised by the Treaty of Lisbon in its Article 17(3).The author questions the logic of this inclusion, the rationale of the role ofthe European Commission as the body tasked with its co-ordination and itspotential role in intercultural understanding, and this reflection leads to the con-clusion that there is no justification for a differentiated dialogue provision.
This is a well-structured, interdisciplinary, engaging and thought-provokingbook, which will be invaluable to those readers with an interest in law, politics,history, theology or sociology. The diversity of the contributions and its cohesivenature make its reading strongly to be recommended.
JAVIER GARCIA OLIVA Q1
University of Manchester
doi:10.1017/S0956618X13000288
Religion in Legal Thought and PracticeHOWARD LESNICK
Cambridge University Press, New York, 2010, xx + 623 pp (paperback £44)ISBN: 978-0-521-13448-4
In a fascinating article in this journal,1 John Witte has described something ofthe recent explosion in interdisciplinary scholarship dedicated to the study ofthe religious dimensions of law, the legal dimensions of religion and the(occasionally fissiparous) interaction of the two. Howard Lesnick’s weightyreader is a stimulating and thought-provoking contribution to the field, with adistinct emphasis on ‘the relation between religion and moral obligations(including obligations to support or oppose, or to obey or disobey, certainlegal requirements)’ (p xix).
Professor Lesnick has skilfully gathered together over 100 highly edited andcarefully selected pieces from authors as varied as Augustine and Aquinas toWalter Brueggeman, Richard John Neuhaus, Richard Mouw and Pope JohnPaul II, not so much to provide ‘answers’ – there are very few in this
1 J Witte, ‘The study of law and religion in the United States: an interim report’, (2012) 14 Ecc LJ327–354.
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wide-ranging book – but to trigger the reader’s engagement with the variousauthors’ claims, in order to
understand religious perspectives at work in the arenas under consider-ation and to articulate their relevant themes accurately, emphatically andin some depth. My goal is to enable readers with widely varying responsesto the call of religion to understand their own responses more fully and toappreciate that they can understand as well the beliefs and practices ofothers, without having to validate or endorse them. (p xix)
By means of contributions from a wide range of legal and religious scholars, thebook examines an impressive span of moral issues in public and private lifefrom a religious, but not a devotional, perspective.
Five questions are posed that undergird the flow of a sizeable book. Where domoral imperatives come from and how do the answers found in religion and inlaw affect one another? What is the significance of the religiously grounded char-acter of a moral norm for our thinking about moral obligation and disputed issuesof public policy? What are the differences (and similarities) between religious andsecular sources of moral norms? How can religion’s importance to our legal think-ing, and its grounding in (differing) claims of revelation, be honoured in amanner that also honours our commitments to pluralism and freedom of con-science and our self-concepts as morally and intellectually responsible agents?How can we integrate our religious commitments with our choices in our worklives? The topicality of the questions is surely unmistakable.
Professor Lesnick, a former law clerk to US Supreme Court Justice John MHarlan, is a scholar at the University of Pennsylvania Law School and afounder and past president of the Society of American Law Teachers. He linkshis skilful selection of pieces with comment and questions of his own, aimedperhaps more at the seminar room than private reflection. He means toprovoke, to challenge, to stimulate, perhaps even to help his readers see pro-blems where previously there seemed to be an obvious answer.
Immensely sympathetic to a ‘religious’ worldview, convinced that religious tra-dition has ‘a unique depth and power . . . to illuminate . . . to inspire . . . to fuel thewill . . .’ (p 503), conscious of his own ‘receptivity to Jesus and to Christian teach-ing’ (p 551), and drawing on very many obviously Christian sources, Lesnick never-theless grants no easy ride to orthodox Christianity, nor will he tolerate anyplatitudes pronounced simplistically in the public square, asserting that while
I do not object to the decision of conservative religionists to believe (as I donot) that ‘divine revelation can be formulated in irrevocably and universallytrue creedal and dogmatic propositions’. I do fault their refusal to allowthose who do not join them in their beliefs to have what we do believe
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taken seriously, and described with accuracy and respect; we do not allwarrant consignment to a common grave, our headstones labelled‘widely prevalent’, ‘sophisticated intellectuals’, or ‘cultural relativists’.This kind of sneering polarization is a manifestation of the triumphalistspirit that is conservative religion’s tragic flaw. (p 505)
Himself a Jew, Lesnick is honest enough to say
bluntly, albeit as respectfully as I can, that I do not believe the central nar-rative of either Judaism or Christianity – the giving of the Torah on MountSinai, or the incarnation of divinity in the person of Jesus – ever happened,in the usual sense of that word. It is primarily for this reason that I resistthinking of myself as a believer. (p 502)
He prefers to say that the biblical stories ‘carry truth’ rather than that they ‘aretrue’ (p 502), but still (somehow) insists that the call ‘to listen for the voice ofGod, to seek to learn God’s will’ (p 505) is at the very heart of our humanity.About the latter he is surely right.
Core chapters at the heart of the book assemble a fascinating range of scho-larship in the debates surrounding economic justice, bioethical questions,abortion, homosexual sex, war, capital punishment, and religion and(dis)obedience to law – the gem of Martin Luther King Junior’s famous 1963letter from Birmingham City Jail to his fellow clergy being a sheer delight.
The pieces offer often unsettling and always serious engagement with thethorniest of issues. Lesnick abhors simplistic answers and labours throughoutto find common ground in debates where so much ultimately devolves intoquestions about what it means to be human and to live well. But perhapseven more useful and stimulating (certainly to the practising lawyer) are thebroader chapters (from sources most of us would probably not readily encoun-ter) grappling with moral obligation, moral discernment and moral decision-making in professional life. Here Lesnick’s 50 or more years’ experience tell,as he himself writes movingly of ‘personal fulfilment in the changing worldof law practice’ and the call to ‘stand with those in trouble’ (p 13), or of ‘the reli-gious lawyer in a pluralist society’, called to function without ‘bleaching out’ hisor her faith (p 393).
He concludes the book with a section entitled ‘Religiously grounded moraldecision-making in professional life’, in which one author (Amelia J Uelmen)refers to ‘the pain of moral lawyering . . . when a lawyer’s personal moral codeconflicts with the client’s goals’ (p 593). She continues:
a religious lawyer searches out, highlights and acts on the opportunities torefer to relevant ethical and moral considerations. Moral lawyering
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presupposes that what is at stake is not just the lawyer’s own ‘highly par-ticular’ beliefs or a personal ‘need’ to ease one’s conscience, but abroader and more objective vision of the common good. (p 594)
Working that out may, at times, be easier said than done.This detailed, carefully nuanced book may make trite answers a little harder to
come by, but it is a rich contribution to a contemporary debate that is growingever more complex.
DAVID TURNER Q1
Chancellor of the Diocese of Chester
doi:10.1017/S0956618X1300029X
Hinduism and Law: An IntroductionEdited by TIMOTHY LUBIN, DONALD R DAVIS JR AND JAYANTH K KRISHNAN
Cambridge University Press, Cambridge, 2010, xiii + 301 pp (hardback £58)ISBN: 978-0-521-887861; (paperback £20.99) ISBN: 978-0-521-71626-0
The Spirit of Hindu LawDONALD R DAVIS JR
Cambridge University Press, Cambridge, 2010, 208 pp (hardback £53) ISBN:978-0-521-87704-6
As fillers in the fairly large gap among recent texts that aim to introduce Hindulaw to a wider readership, these books merit a cautious welcome. Written largelyby contributors based in the United States, Hinduism and Law constitutes some-thing of a challenge to European scholars.2 It demonstrates that Hinduism andlaw can be studied through multiple lenses and raises issues important in them-selves and also for a wider study of comparative law. This desire to make Hindulaw relevant to a wider discussion on comparative law is also evident in Davis’own The Spirit of Hindu Law.
The title of the collective work avoids the more generally used ‘Hindu law’. Forthe editors ‘Hindu law’ represents a narrower field that concentrates on the studyof the classical Dharmasastra textual sources and, presumably, the commentariesand digests that expand on this literature. They claim to look more broadly atHindu traditions and how they link to and inform the study of law. The Spirit ofHindu Law, by contrast, has a narrower focus on the Dharmasastra textual
2 This challenge is identified by W Menski, ‘Review of Timothy Lubin, Donald R Davis Jr, and JayanthK Krishnan (eds), Hinduism and Law: an introduction’, (August 2012), Bulletin of the School of Orientaland African Studies 28–29.
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genre. The range of sub-topics covered by the contributors in Hinduism and Lawreflects the editors’ claim, as does the grouping of the chapters into three mainparts on ‘Hindu law’, ‘Law in ancient and medieval Hindu traditions’ and ‘Lawand modern Hinduism’. Despite the bold choice of title, the editors acknowledgethat the terms ‘Hindu’ and ‘Hinduism’ are somewhat problematic and attempt tocontextualise their emergence early on. This is not unlike the situation of otherwriters on India who confront the fact that these imposed terms lack coherenceand defy making any real sense to Indians. Yet, as the contributions to Hinduismand Law also reveal, writing by Westerners and their Indian imitators has not chal-lenged to any significant degree this and other current nomenclature for studyingIndian phenomena. Nor has the underlying framework giving rise to its existence,or the research questions conditioned by that framework, been much revised.
Through work that contextualises Western writing on India, we know that it haslargely represented the Western experience of India and not the Indians’ experiencesof their own realities. That Western experience may be seen as framed by theChristian religious culture of the West, which has succeeded in stamping its ownquestions and answers upon the study of Indian culture to the degree that Indianshave themselves adopted those same frameworks without necessarily being able tomake sense of them.3 It is unfortunate that the Christian theological underpinningsof the conceptual frameworks thereby established are barely questioned in eitherbook. In fact, Indian legal studies both abroad and especially in India have yet tocome to terms with the problem of being trapped in such a Eurocentric framework.
Thus the editors’ introduction in Hinduism and Law follows Davis’ Spirit withinsistent claims: that Hindu law is characterised by its grounding in ‘authorita-tive texts’ (p 3), which provide it with a ‘scriptural foundation’ (p 6) as with theAbrahamic traditions; that there is a ‘Hindu theology’ (p 6); that ‘Hindu law is asystem of religious law, analogous to other traditions such as Jewish, Islamic, orcanon law’; that Hinduism is a coherent unit of discourse (p 6); that Hinduism(and Buddhism and Jainism) are ‘religions’ (p 3); and so on. These ‘findings’ –they are more like hyperbolic and empirically untested claims generated by theframework described above – demonstrate that the compilers have adopted theWestern conceptualisation of Indian traditions as being essentially ‘religious’alongside their own religious culture, Christianity, as well as Islam and Judaism.
Following S N Balagangadhara,4 I now refer to this as a process of ‘anothering’,which is set in train by Christianity and involves depicting another culture as anerring variant of Christianity, and providing it with a foundation through which
3 S Balagangadhara, ‘The Heathen in His Blindness . . .’: Asia, the West, and the dynamic of religion (Leidenand New York, 1994); S Balagangadhara and M Keppens, ‘Reconceptualizing the postcolonialproject: beyond the strictures and structures of Orientalism’, (2009) 11 Interventions 50–68;R Gelders and S Balagangadhara, ‘Rethinking orientalism: colonialism and the study of Indian tra-ditions’, (2011) 51 History of Religions 101–128.
4 Balagangadhara, The Heathen in His Blindness.
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its falsity is inscribed. The books under review follow this path, or at least give noindication that it is a problem to the fairly large gathering of Indologists, histor-ians of colonialism and, indeed, researchers of contemporary Indian law. Thekinds of smuggled-in (often now secularised) Christian theological conceptsand philosophical assumptions referred to above are not isolated instancesbut permeate various contributions. We thus read of ‘divine will’ (the editors,Hinduism, p 11); ‘Brahmanical theologians’ and ‘Brahmanical religiosity andsoteriology’ (Olivelle, ibid, pp 31 and 32); that Hinduism had ‘its roots inDharmasastra’ (Williams, ibid, pp 112 and 118); and that the Dharmasastra pro-vided ‘codes governing human conduct’ (ibid, p 123), that the Vedas provide‘commands’ (ibid, p 130) and that texts found human practices (all McCrea).
The predominant assumption in both books – that pre-colonial Hindu lawwas based on a system of textual, codified laws upon which are foundedhuman practices – entails considerable ambiguity in at least three senses:first, the position of Brahmins, who are said to have some kind of dominant pos-ition in the Hindu hierarchy and are presumably able to dictate to the rest ofsociety what the rules are; secondly, the position of rulers who should presum-ably enforce those rules; and thirdyly, the role of the rest of the social set-up.Neither the contributors to Hinduism and Law nor Davis in The Spirit ofHindu Law are able to endorse the stand taken by Menski,5 who resists the temp-tation to read the Indian legal material from a positivist legal or religious stand-point, and recognises the predominance of custom and individualdecision-making in socio-legal reality. In The Spirit Davis does mention his‘intellectual disagreements’ (p ix) with Menski but does not say on which points.
This is not to say that some of the authors do not attempt to grapple with thequestion of the state–society relationship as depicted in the pre-colonial Hindulegal and other texts. Thus Michaels provides a brief description of the variationsin practices of law in some of India’s regional systems, including the Marathas,Kerala and Tamil Nadu, showing a great variety of such practices in kingly courtsand other, customary fora.
Lubin distils from Dharmasastra writing the conclusion that:
In spite of the fact that the Dharmasastra is intended to define the gener-ally applicable rules of correct practice, one of those general rules directlyconfers authority on the standards of practice recognized as applyingwithin particular social groups and organizations. (Hinduism, p 140)
Such a finding evidently leaves many a scholar in a quandary about how to assesstextual sources that defer to the prevalent local practices. One can see this struggle
5 W Menski, Hindu law: beyond tradition and modernity (New Delhi, 2003).
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with Davis in The Spirit too, where he devotes a whole chapter to acara (broadly,customary practice) but then seeks to find the source of custom in ‘normsaccepted and imposed by the leaders of various social institutions’ (p 146). Thisslippage, indicated by the desire to locate custom in some rule-giving structureor authority, betrays the attitude that, if it is not the Brahmins, there must besome other sort of top-down rule-emanating authority.
Yelle poses a brilliant challenge, not only stating that the Dharmasastra wouldonce have been an oral tradition of maxims or proverbs that circulated andchanged, much like early Jewish law, but also noting the ‘close associationbetween the poetic form of many ancient laws and their function in an oralculture’ (Hinduism, p 191). As such, although prescribed in written texts, he saysthat the formulas regarding ordeals were meant to be spoken to impress an audi-ence consisting of both the literate and the illiterate alike. This performativedimension of the Dharmasastra underlines a view of Hindu law’s textualsources as constituting not a ‘command structure’ but a set of legal heuristics.McCrea concedes, ‘What one gets from these texts comes to sound less and lesslike an unshakably authoritative and oracular voice of truth and more and morelike an interminable, and ultimately irresolvable, argument’ (Hinduism, p 136).
The position of rulers is also ambiguous. The development of their role andtheir deployment of punishment measures (dan
˙d˙a) are dealt with less clearly
than by Menski6 but important observations are made here and there. Coxstruggles beautifully to explain the portrayal of the ideal ruler in aDharmasastra commentary on the one hand, and in the poetic (kavya) traditionon the other. He makes important observations about the rulers’ paramountduty of legal adjudication or supervision of legal transactions (vyavaharadar-sana). Davis in both books acknowledges that punishment is imposed not justby rulers and often takes the form of ordeals (prayascitta). On the general law-making power of kings, Lubin says:
There seems to be hardly any example of a king publishing a generallyapplicable law on his own authority, let alone promulgating an entirecode. Rather, it seems to have been assumed that his general role wasexecutive and judicial: to hear and adjudicate civil suits, to judge criminals,and to assign punishments for the guilty. (Hinduism, p 151)
While adjudication occurs in many locations, and not just as made by kings ortheir delegates, the Austinian model was not in use among pre-colonial Indians.
Several chapters in Hinduism and Law (Sturman, Williams, Rocher) providesome detail on the mismanagement of Hindu law by the British rulers. We
6 Menski, Hindu Law.
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have almost no details on the Muslim, Portuguese and French practice, althoughOlivelle suggests that more work needs to be done on the increased productionof Hindu law digests as a result of the Muslim influence. Some well-knownissues are reintroduced: the initial acceptance of the British rulers that somelocal legal practices would have to be acknowledged; the turning to pundits todiscover what the Hindu law was; the choice to codify aspects of Hindu law;the allure of custom, which, ultimately, was also codified or written down intexts and recognised in the case law, all at the expense of knowing aboutongoing practices. Scholars of legal pluralism will appreciate Sturman’s obser-vation that ‘The colonial form of legal pluralism involved an abridgement ofearlier forms of legal pluralism that had previously prevailed both in Europeand in the now colonized regions, and their replacement by a state-centeredlegal order’ (Hinduism, p 91). As she notes, even the proponent of customarylaw, Henry Maine, eventually called for codification of Indian law ‘upon thebest European models’ (ibid, p 95). All this was part of an overall enterprisethat Rocher describes as retrieving the essence of a once glorious civilisationfrom its foundational texts. Far from rejecting wholesale the indigenous tra-dition, as Jakob De Roover has recently shown, the liberal toleration of the colo-nial state was driving to purify that tradition of its pagan elements.7
In a recent interview, Bharat Gupt is stated to have ‘expressed disappointmentthat modern education has made us think that shastras written in Sanskrit areforms of “backwardness” and for pundits only and “several generations havebeen raised to look down upon the classical texts, particularly the Shastras orSmritis”’.8 He was speaking of the science of performing arts genres, theNatyasastra, but what he said could well apply to the contemporary view ofDharmasastra conceived of not as a set of texts but broadly as the Indian scienceof law. The books under review may provide some indications for fruitful endea-vours in rediscovering that science, but they fail to provide a broader frameworkfor making it relevant to twenty-first-century Indians. This is despite the coverageof contemporary developments in some chapters that remain focused on a group ofquestions seemingly interesting for Western researchers. Perhaps their questionsare ultimately too far removed from being able to address Indian realities and onemay wonder then what the effort was for.
PRAKASH SHAH Q1
GLOCUL: Centre for Culture and LawQueen Mary, University of London
doi:10.1017/S0956618X13000306
7 J Roover, ‘Secular law and the realm of false religion’, in W Sullivan, R Yelle and M Tausig-Rubbo(eds), After Secular Law (Stanford, CA, 2011).
8 The Hindu, 31 August 2012.
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Legal Flexibility and the Mission of the Church: Dispensation andEconomy in Ecclesiastical LawWILL ADAM
Dr Adam’s excellent book provokes much thought. It begins with a brief chapterentitled, ‘Introduction and definition of terms’ and then proceeds to consider‘The development of dispensation and economy in the early Church’ and ‘Thedevelopment of dispensation in the West’. Having discussed ‘Dispensation inthe contemporary Roman Catholic Church’ and ‘Legal flexibility in English Law,’Dr Adam then turns to a general chapter on ‘Dispensation in the Church ofEngland’. Thereafter, he tests legal flexibility in three separate chapters: ‘Theritual controversy in the nineteenth-century Church of England’, ‘The proposedrevision of the Book of Common Prayer 1927–8’ and ‘The use of economy inAnglican–Orthodox relations’. The last of these chapters leads on to‘Ecumenism and economy: legal flexibility and inter-church relations’, before‘Dispensation, economy and legal theory’. In his conclusion, he argues that ‘theconcept of [dispensation] has been shown to exist in a number of guises’(p 205), although the extent of its use ‘should not be over-estimated’ (p 206).
No-one is likely to disagree with the latter summary but the extent of any dis-pensation still remains open to debate. Dr Adam defines ‘dispensation’ as ‘alegal process by which an individual is dispensed from the duty of complyingwith a particular law’ (p 2). Putting aside the question whether a satisfactory defi-nition can include the matter to be defined within that definition itself, this defi-nition/description is fortunately clarified later, when Dr Adam states: ‘Thecharacter of a dispensation is that it requires a situation where, but for the dis-pensation, the act or omission concerned would not be legal but where, with thedispensation, it would be legal’ (p 72). And here lies the rub. Who is to decidewhether the perceived dispensation is, indeed, legal and whether therefore, inlaw, it has attained its object? Dr Adam concedes that ‘the concepts of legal flexi-bility, dispensation and economy . . . sit uncomfortably with the legal positivismthat has been the prevalent theoretical strand in English jurisprudence’ (p 6,expanded in the final chapter). Nonetheless, at least in the foreseeable future,it will be those judges and lawyers trained within that positivism who will ulti-mately decide whether the ‘dispensation’ has attained its object or whether theact or omission remains contrary to the law.
The question of definition remains important. When considering thebishops’ actions in ‘permitting, but regulating, the use of the 1928 [Prayer]book’, Dr Adam argues that their actions were ‘a clear example of a provisionalor temporary setting aside of the law’ but then (rightly in this reviewer’s view)
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concludes that ‘they were not . . . exercising a power of dispensation as under-stood in the western canonical tradition or in English law’ (p 130). He mayindeed be right that this attempt was what in eastern canonical traditionwould be regarded as oikonomia (economy), that is, ‘the allowing of a breachin the law for a greater purpose – namely the salvation of souls’ (p 130), butthat could not have made the bishops’ actions legal;9 it is, of course, unlikelythat they could call upon either the doctrine of necessity or any vestigial jus litur-gicum. As to the salvation of souls, it is worth recalling that Stephen Neill con-cluded in relation to the 1928 Prayer Book that ‘[t]he most embarrassing thingof all is that Parliament seems to have judged more correctly than theChurch’.10 If so, where was there any true foundation for ‘economy’?
One surprising statement by Dr Adam is that ‘[a] major and widespreadexample of dispensation as practised in the Church of England is in the areaof the alteration of church buildings’ (p 86), although he on the next page hegoes on to qualify this view somewhat. A faculty is no more than a permissionto do an act that would otherwise be unlawful but, as the granting of such a per-mission is authorised by the law itself, it cannot amount to a dispensation withinthe definition/description put forward by the author. Dr Adam also seems toregard the delegation by chancellors to incumbents of an authority to permitmemorials in churchyards as an example of dispensation (p 89) but this, infact, is no more than a delegation of an existing power to grant permission.The authority nonetheless remains with the chancellor. As it is mere delegationand not a dispensation there cannot be any ‘weakening of the Rule of Law’ as DrAdam suggests (p 89) if Churchyard Rules differ from one diocese to another.11
To this reviewer the most interesting arguments put forward by Dr Adam arethose in relation to recognition of orders conferred by other Churches and thePorvoo Agreement. He concludes that
The legal basis for this recognition lies in the authority of General Synodand of the archbishops . . . However, it should be noted that there is a
9 I do not know whether the Ecclesiastical Judges Association still has in its possession a paper entitled‘Aumbries: memorandum by the Chancellor of Newcastle’, which refers to a case where in relianceupon the above national policy the Bishop of Newcastle purported to license an aumbry where afaculty had already been refused by the consistory court. When parishioners applied to the courtfor the removal of the aumbry the Chancellor made no order, on the grounds that it was a matterfor the bishop and not the court. In the Memorandum the Chancellor defended his position onthe grounds that he might otherwise condemn the actions of his own bishop in the latter’sabsence. He nonetheless added that he would have to deal with the legality of any reservation ofthe Holy Sacrament if any future application were to be made for a faculty for an aumbry.
10 S Neill, Anglicanism (Harmondsworth, 1960), pp 397–398.11 In this regard it may be worth noting that the authority to permit memorials in the shape of a cross or
heart is not delegated to incumbents in the Diocese of Oxford because such memorials have in thepast proved to be unsafe. Nonetheless, after due enquiry and advice from the Diocesan AdvisoryCommittee, they may be, and are, permitted by the current chancellor by faculty.
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question as to whether the power of the archbishops to declare a Church‘in communion’ is sufficient power to override the statutory requirementsof the Act of Uniformity and whether an Act of Synod is sufficiently author-itative to do the same. (p 168)
As yet this question has not been tested in the courts.In summary, this fascinating book is warmly recommended and deserves to be
read by historians and lawyers alike. For those interested in the early history of dis-pensations further information can be found in J Churchill, CanterburyAdministration (London, 1933) and D Chambers, Faculty Office Registers 1534–1549(Oxford, 1966).
RUPERT BURSELL Q1
Chancellor of the Dioceses of Durham and Oxford
doi:10.1017/S0956618X13000318
Islam, Europe and Emerging Legal IssuesEdited by W COLE DURHAM JR, RIK TORFS, DAVID M KIRKHAM AND CHRISTINE SCOTT
There can be little doubt that the enhanced visibility of Islam throughout Europehas resulted in an emergence of legal issues, grounded in religion, with whichindividual national courts have had to grapple. Many of these cases, because ofthe way in which they have been decided, have culminated in hearings beforethe European Court of Human Rights (ECtHR), a Court that, it is asserted inthis book, ‘has emerged as the most effective transnational human rights insti-tution on earth’ (p 2). That may well be right but the theme apparent from thecritical studies collected here is that the jurisprudence of the ECtHR illustratesthat the record of the Court, when it comes to balancing principles of Islam withthe ‘traditional values’ of Europe, is not an unblemished one.
This notion of ‘balancing’ is tackled in the opening chapter, where the authorexamines whether or not the ECtHR, when dealing with cases related to principlesof Islam, has followed the usual doctrine of stare decisis vis-a-vis similar cases con-cerning different religions, or whether it has differed in its approach, simplybecause the religion that is at the heart of the case is Islam. Having reviewed therelevant ECtHR jurisprudence, the author concludes that in some instances(such as when dealing with the autonomy of Muslim religious communities, orreligious instruction in public schools) the Court has ‘applied to Islam the sameprinciples that it has applied to other religions’ (p 59). The author identifies,however, two provisos: one being described as ‘Islam in Turkey’ (p 60), the
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other as ‘the clear endorsement granted by the ECtHR in the last years to the pro-secular policies in France aimed at reducing the visibility of Islam in public spacesthat are considered neutral or secular’ (p 61). As regards the former proviso, refer-ence is made to cases such as Kalac v Turkey,12 where the applicant, who held judi-cial office within the Turkish army, was ordered to take compulsory retirement, thealleged aim being ‘the preservation of respect for the constitutional principle ofsecularism among army officers’. The Court dismissed the case, noting that pursu-ing a military career was a voluntary option for the applicant and that he shouldhave been aware that he would be subjected to ‘a system of military disciplinethat by its very nature implied the possibility of placing on certain of the rightsand freedoms of members of the armed forces limitations incapable of beingimposed on civilians’.13 The French proviso needs little elaboration as the publicityand debate surrounding the controversial 2004 legislation prohibiting, inter alia,the wearing of ‘conspicuous’ religious dress in public schools continues to rage.The author considers the attitude of the Court in this regard to be ‘dangerous’(p 61) and with just cause. Cases such as Dogru and Kervanci14 demonstrate thatthe ECtHR is quite prepared to support European countries that introduce suppres-sive legislation under the guise of simply promoting ‘neutral’ environments inpublic arenas. It is convenient for such legislative agendas, as the author rightlyobserves, to synonymise secular democracies with this idea of ‘neutrality’. Intruth, of course, they do not go hand in hand, as ‘neutral public environments’cater primarily for those who have no religious belief; those who wish to manifesttheir religion through dress become alienated.
Perhaps understandably, the debate surrounding the wearing of the hijab (or‘Muslim headscarf’) features heavily throughout the various chapters that comprisethis work. The author of Chapter 2 is highly critical of the aforementioned Frenchlegislation, observing that, while it does not ‘explicitly single out certain religioustraditions as favoured or disfavoured’, it does ‘explicitly single out those who arewearing religious garb with a certain more visible degree of “ostentation”’ (p 73).In other words, Christians may continue to wear a discreet cross around theirneck, whereas Muslim girls may not wear the hijab and Jewish boys may notwear the kippa. The law is, unquestionably, discriminatory both in its applicationand its effect. It is refreshing to see, in Chapter 3, a contribution from a femaleMuslim scholar who gives a careful, yet emotive, analysis of the hijab situationas faced by Muslim women today.
Part II of the book, comprising Chapters 5 to 9, is dedicated entirely to the‘Islamic headscarf controversy’. Chapter 5 provides, among other things, a
12 Kalac v Turkey (App No 20704/02) 23 June 1997, ECtHR.13 Ibid, at para 28.14 Dogru v France (App No 27058/05) and Kervanci v France (App No 31645/04), 4 December 2008,
ECtHR.
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brief but insightful comparative analysis of the legal position across theEuropean countries, noting that in the Sahin15 case the ECtHR concluded,unconvincingly, that there is no ‘European consensus on the matter’ (p 95)despite acknowledging that state prohibition against the hijab is quite clearlythe exception and not the rule. The author’s words are provocative at times, par-ticularly when he suggests that ‘if Turkish students were to launch a politicalcampaign against the ban on headscarves . . . one might assume that theCourt would be somewhat troubled by its conclusions and reasoning in Sahin’(p 102). There is considerable overlap in this part (and sometimes repetition)by the respective contributors, particularly in relation to the case of Sahin.Chapters 8 and 9, however, provide an interesting insight into the legislative fra-mework present in Norway and Germany, the latter providing some particularlythought-provoking commentary.
Turning away from the issue of the hijab, the final section (Chapters 10 to 13)looks at the European Court ‘and the limits of pluralism’, where much attentionis paid to the ECtHR decision in Refah16 concerning the dissolution of the RefahParty in Turkey, described by one of the contributors as ‘deeply flawed’ (p 209).Further, the way in which the ECtHR has construed Islam, and the principlesupon which the religion is based, is vigorously attacked. In one instance it issuggested that the ECtHR might be disposed to think of Islam ‘in stereotypicaland prejudicial terms’ (p 229); in another it is claimed that the Court needlesslyrelied upon ‘pejorative generalisations about a major religion’ (p 271). The finalchapter considers how the much-criticised decision of the ECtHR in Refah mayhave implications for the rights of religious associations to acquire legal entitystatus. This chapter is a probing one and, in conformity with most of theother contributions to the work as a whole, is highly critical of the ECtHR’sinability properly to apply the principles of the European Convention in thecontext of Islam.
There can be no doubt that this book should attract the interest not only oflegal and religious specialists but also of the lay community. It is thought-provoking, insightful and justifiably critical of the approach that the ECtHRhas taken when dealing with ‘Islamic cases’. With that in mind, perhaps the judi-ciary of the ‘most effective transnational human rights institution on earth’ (p 2)should be added to the list of intended readers.
CHRISTOPHER GROUT Q1
Barrister, Acting Registrar of the Qatar International Court
doi:10.1017/S0956618X1300032X
15 Sahin v Turkey (App No 44774/98), 10 November 2005, ECtHR.16 Refah Partisi (The Welfare Party) and Others v Turkey (App Nos 41340(42(43)/98)), 13 February 2003,
ECtHR.
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The Established Church: Past, Present and FutureEdited by MARK CHAPMAN, JUDITH MALTBY AND WILLIAM WHITE
T&T Clark International, London, 2011, xi + 200pp (paperback £14.99) ISBN:978-0-567-35809-7
The Established Church comes at an appropriate time in the national debate onthe relationship between the Church and the state. With a change of incum-bency at Lambeth Palace, thoughts turn to how the new Archbishop will leadthe Anglican Communion forward through one of the most divisive periodsin its history. The topical political issue of same-sex marriage, in particular,goes straight to the heart of where the boundaries between Church, state andour national culture lie.
Although the book is divided into a collection of essays, each addressing adifferent aspect of the relationship between Church and state, there arethemes that run through all of them, giving what could be a rather disjointedcollection a thematically consistent feel. One of the key issues addressed iswhether the Church of England should be an evangelical or an institutionalchurch, and the first chapter, by Nigel Biggar, explores the limitations of estab-lishment for the Church of England by balancing the Church’s duty to the entirecommunity against a call to express views that will run contrary to the those ofmany of its constituency. Matthew Grimley discusses how minority faith groupsbroadly favour establishment as a way of recognising the spiritual factor inpublic life; but at what cost to the theology of the Church?
A very useful comparison is drawn between the establishment of the Churchof England and the Church of Scotland, in terms of each one’s independence toappoint clergy and adopt liturgy. This is increasingly relevant in terms of thedevolution and localism that have seen the Coalition Government cede decision-making powers to local authorities and third-sector organisations; why shouldthis not equally apply to the Church of England? Can an organisation besubject to those not necessarily sharing its values, such as Parliament?
The final chapter begins by noting Tony Blair’s answer to RichardYounger-Ross in the House of Commons on the question of disestablishment:that the Prime Minister wasn’t ‘bothered about that one’ (p 180). The questionof establishment rarely rears its head outside ecclesiastical circles these days,which is all the more surprising given the sustained attack on faith in publiclife by atheist organisations. Elaine Graham writes on the place of the Churchin a liberal democracy and possibly gives an answer as to why. She arguesthat a liberal democracy is in itself an ideology, and to maintain its aims itmust therefore limit its influence to allow for faith groups to participate incivic society in the way in which the established Church has done for sometime. Reciprocally, the Church must also recognise its duties to foster that
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civic engagement, which makes establishment an efficient way of advancingliberal democracy. This is a useful contribution to consider, following criticismfrom the Church of the Big Society.
The book is a very accessible one. The reader is easily able to delve in and outas the chapters exist independently of one another. Nor does the reader need anin-depth knowledge of ecclesiastical history, since concepts are clearly intro-duced. Its topicality also makes it a very useful contribution to our nationaldebate on faith, state, culture and localism, looking beyond the present stateof establishment.
CHRIS DONNELLY Q1
Barrister
doi:10.1017/S0956618X13000331
Law, Religious Freedoms and Education in EuropeEdited by MYRIAM HUNTER-HENIN
As European countries have become more pluralist and in some senses secular,the regulation of religion in the public sphere has acquired more urgency. These17 essays by sociologists, political scientists, historians and legal specialistsreport the growing importance of religious freedom in western Europeanschools and workplaces. At the same time, they demonstrate a developingprocess, balancing conflicting rights and viewpoints, which will help prac-titioners and those worried about apparent attacks on Christianity.
The background might be best expressed in the quoted view of ProfessorMartha Nussbaum that responsible citizenship includes appreciating the com-plexities of the major world religions (p 207), and that therefore each state’sduty is to provide that education, which somehow has to be reconciled withparents’ (if not their children’s) right of withdrawal from religious education.The chapter on Spanish state schools, while insisting that denominational teach-ing cannot fairly be accused of bigotry or exclusivism, asks whether those optingfor denominational instruction do not thereby miss out on wider teaching thatwould prepare them for a tolerant and pluralist society.
The book falls into four main parts. First, the tensions and interactionsbetween the key concepts of integration, laıcite, identity and discriminationare considered, drawing on France with Jewish schools, and England withMuslim schools. Secondly, there is an examination of the broad range ofoptions between the complex and overall broadly Christian model in England
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and Wales, the highly segregationalist and bipolar – Catholic and Protestant –structure in Northern Ireland, the separationist and laıc French system and theneutral secularity of Germany (with its Basic Law spanning 16 different Landerlegislatures) and Spain. In all these, the interplay of religion and education isdeeply imbedded in historical and political national contexts, which are thenreflected in the judicial or legislative solutions given in different jurisdictionsto particular issues regarding religion.
In the remaining sections of the book, the convergent effect of the decisionsof the European Court of Human Rights (ECtHR) is considered in two vividlydisputed areas: teaching content and religious symbols. The realm of educationis seen as the main laboratory where the state can test its policies about creatinga harmonious society and what place religion might hold within that society.Because schooling is compulsory, religious freedoms in schools have greatersensitivity than, say, in the workplace, but they were little discussed withinEuropean institutions until spurred on by the security implications of the terror-ist attacks of 11 September 2001 in the USA.
Because religious belief defines a person’s very being, their sense of who theyare and how they relate to the world, the recognition of religious freedom is abasic human right, yet it may often conflict with a national perception, or doc-trine, of identity. While all states seek to integrate everyone, regardless ofclass, sex or religion, some seek to do so by relentless assimilation or evenSoviet-style uniformity; while others pursue integration by accommodatingdifference, with the risks of atomised groups within society or accepting com-plete segregation with separate rules.
These opposing systems are exemplified by France, which permits no inter-mediate representation between the individual and the state, and Britain,which believes that giving a voice to groups and communities enables a valuablediversity – even though such groups may not easily find mutual understanding.France and Britain are, of course, not polar opposites: despite its anti-clericalhistory, France finds room for belief, while Britain has many secular elementsalongside its elements of establishment. In the French saga of the veil, byplacing Muslim girls in a situation in which they choose between not wearingthe hijab or finding refuge in Catholic schools, it is argued that France has sacri-ficed its original republican intent of putting education at the heart of inte-gration. Of the 17% of French pupils educated in the private sector, 95% ofthese are in Catholic schools but, as Catholic schools become increasingly secu-larised (by parental pressure or lack of Catholic teachers), the apparent divisionis now between highly prestigious wealthy schools and those in poorer areas,often attended by children from immigrant families. A contrast can also beseen in Church of England schools: those in villages are often closer to beingfaith schools, while many in the cities, particularly in poorer areas, can rightlybe deemed ‘community schools’ in their openness to other faiths. France
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seems to be gradually overcoming its hostility to religion: although the NationalCurriculum permits no formal hour for religious education, recent history text-books have cautiously opened for teachers’ discretion the examination of reli-gious issues arising from core subjects.
US attempts to extend science education into evolution have fallen foul ofcreationist objections; even teaching evolution as ‘merely scientific theory’ isheld to discriminate it from other science on religious grounds. Were evolutionheld to be a religion per se, US parents could require their children’s exemptionfrom classes – and similarly, by extension, from classes on climate change orbirth control. US courts have resisted this, although the changing membershipof the US Supreme Court might today have brought a different legal outcome.Related debate has surrounded the concept of ‘intelligent design’. To a limitedextent these debates have fed into discussions in Europe – EmmanuelCollege, Gateshead, is an example quoted – but European constitutions donot resemble the US First Amendment and divisions in European societiesare less fiercely contested.
While in 1982 the ECtHR ruled Scottish schools wrong to beat children withthe tawse against their parents’ ‘philosophical convictions’ about punishment, inthe Williamson case in 2005 the House of Lords ruled that schools’ refusal toinflict corporal punishment conflicted with some parents’ Bible-based right torequire this under Article 9, but otherwise declined to enforce that right.Their Lordships noted that, while they should not be drawn into evaluatingintensely held beliefs against official doctrines, manifestation would not be pro-tected where it harmed other human rights.
The Grand Chamber’s reversal of the earlier Lautsi v Italy judgment, rulingthat a crucifix on a classroom wall as ‘an essentially passive symbol’ (whereasa Muslim headscarf had been ‘a powerful external symbol’, though worn by aperson with fundamental rights) did not inevitably infringe the state’s properneutrality, raises questions about the definition of neutrality and how tolerancemight be better advanced in increasingly pluralist societies. A Bavarian case 15years earlier had held that crosses over all classroom doors (replacing earlier cru-cifixes) were not merely a symbol of western culture, whatever the stateintended. Rather they could be seen as the primary symbol of Christian faith,and were not avoidable (as school prayers were), thus forcing pupils to ‘studyunder the cross’ and so violating the state’s neutrality. Tobias Lock’s essay com-pares the two decisions and also contrasts the rights of pupils with those of tea-chers as employed. Following a different headscarf case, eight of the GermanLander passed laws enabling monks and nuns to wear habits in classrooms,in accordance with ‘Christian and Western educational and cultural values’(p 362).
Subsequent to Frank Cranmer’s discussion here of such cases and otherswhere belief has led to action manifesting that belief in ways that have conflicted
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with employers’ policies (wearing a cross or crucifix, veils and turbans; or refus-ing to counsel or conduct civil partnerships of same-sex couples), the ECtHR hasin January 2013 made finely nuanced rulings. Cranmer and also RussellSandberg (who blames newspapers’ hyperbole for spreading confusion aboutthe Equality Act 2010) chart the waters within which these rulings should beexplored, while Mark Hill provides similar context in relation to rulings onthe wearing of religious bracelets, rings and veils in schools.
While many of the essays inevitably overlap, all are thoroughly argued andtogether provide a wide overview of principles and case studies that may yetinfluence the courts in a field that is rapidly changing.
NICHOLAS COULTON Q1
Dean Emeritus of Newcastle
doi:10.1017/S0956618X13000343
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