Showing papers in "Ecclesiastical Law Journal in 2008"

Civil and Religious Law in England: A Religious Perspective

Abstract: This is the complete text of the lecture delivered by the Archbishop of Canterbury at the Royal Courts of Justice on 7 February 2008, under the chairmanship of Lord Phillips of Worth Matravers, the Lord Chief Justice, as the Foundation Lecture in a series of public discussions on ‘Islam in English Law’.1 The lecture seeks to tease out some of the broader issues around the rights of religious groups within a secular state, using sharia as an example and noting the substantial difference between ‘primitivist’ accounts of sharia and those of serious jurists within Islam. The Archbishop discusses the implications of some interpretations of Western secular legal systems, which seek to remove from consideration the actual religious motivations and practices of groups in plural societies. Where the law does not take religious motivation seriously, then it fails to engage with the community in question and opens up real issues of power by the majority over the minority and thus of community cohesion. It examines whether there should be a higher level of attention to religious identity and communal rights in the practice of the law: how to manage the distinction between cultural practices and those arising from genuine religious belief; and what to do about the possibility that a supplementary jurisdiction could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women. Is a monopolistic approach to a legal system a satisfactory basis for a modern pluralistic and democratic state? Might there be room for ‘overlapping jurisdictions’, in which individuals can choose in certain limited areas whether to seek justice under one system or another? If we are to think intelligently about the relations between Islam and British law, we need a fair amount of ‘deconstruction’ of crude oppositions and mythologies, whether of the nature of sharia or of the nature of the Enlightenment. Following the text of the lecture is a transcript of the Question and Answer session which followed.

In pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury and the Sharia Debate in Britain

Abstract: This article responds to the lecture given by the Archbishop of Canterbury, Dr Rowan Williams, entitled �Civil and Religious Law in England: a religious perspective�. Dr Williams argues that the legal system in Britain must engage constructively with the religious concerns and motivations of members of the diverse communities that make up contemporary British society. My own analysis focuses on the argument that �Muslim communities in this country seek the freedom to live under sharia law�, a claim that underpins the lecture and provides the framework for the Archbishop's discussion of the ability of the English legal system to accommodate Islamic principles and law, in order to become more just and equitable for faith-based communities. My empirical analysis, I argue, is not only better equipped to analyse this complex issue but also demonstrates that Muslim engagement with sharia (in matters of family law) is a complex process that cannot be understood in terms of sharia versus state law, Muslim versus non-Muslims, or those considered as insiders of communities versus outsiders. Muslim engagement with sharia cannot be understood merely in terms of the need for legal rights and obligations to be reformulated to make faith-based minority communities more legally and socially inclusive. It is also necessary to understand the specific ways in which such legal orders emerge in the British context and, most importantly, the rights and motivations of those members of communities who seek to use faith-based dispute resolution mechanisms � in this case, focusing particularly on Muslim women.

The Contribution of Common Principles of Canon Law to Ecclesial Communion in Anglicanism

Abstract: An important recent development in worldwide Anglicanism is the emergence over recent years of a project to articulate the principles of canon law common to the churches of the Anglican Communion. This project seeks to express the juridical character of Anglicanism from a global perspective, not only to underscore the many fundamental values that Anglicans share in terms of their polity, ministry, doctrine, liturgy, rites and property, going to the very roots of Anglican identity but, also, as a concrete resource for other churches in ecumenical dialogue with Anglicans. This article traces the development of the so-called ius commune project, describes the methodological challenges which it faces and, the process of producing a draft. It also seeks to compare the project with the juridical experiences of other international ecclesial communities and, briefly, to place the project in the context of the debate about the adoption of an Anglican Covenant, an initiative proposed by the Lambeth Commission in 2004.

A Tale of Two Churches: The Ecclesiologies of The Episcopal Church and the Church of England Compared

Abstract: This article compares key aspects of the ecclesiologies of The Episcopal Church and the Church of England. First, it examines and contrasts the underlying logic of their structures and the relationships between their constituent parts (General Synod/General Convention, diocese, parish/congregation). Against this background, it then looks at the place of bishops in the ecclesiologies of the two churches (in relation to clergy and parishes, in relation to diocesan synods/conventions and standing committees, and nationally). The American Presiding Bishop's role is contrasted with the traditional roles of primate and metropolitan. Throughout, attention is given to origins and historical development. Reference is also made to the relevant constitutional, canonical and liturgical provisions. Rapprochement between the two ecclesiologies is noted, especially with respect to the role of the laity, but the article argues that this is far from complete. Each church's ecclesiology continues to be determined by its origins; important modifications have been made within that framework, rather than overturning it. It is hoped that the analysis will illuminate the current disputes within The Episcopal Church and the crisis within the Anglican Communion that they have prompted.

Hatred, Sexual Orientation, Free Speech and Religious Liberty

Abstract: In recent years, the clash between supporters of religious liberty and sexual orientation equality legislation has led to repeated battles both in Parliament and the courts. First came the clashes over the scope of exemptions in employment discrimination legislation for religious groups. The UK Regulations dealing with employment discrimination on grounds of sexual orientation give a limited exception for �employment for purposes of an organised religion�, which allows an employer to apply a requirement related to sexual orientation to comply with the doctrines of the religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. A legal challenge brought to the scope of this exception was unsuccessful but, despite that, the exemption has not averted damaging findings of discrimination against the Church of England. The Bishop of Hereford was held to have discriminated unlawfully in blocking the appointment of a practising homosexual to a youth-officer post within the Church of England. The partial success of religious groups in achieving exemption was followed by defeat in the equivalent regulations dealing with discrimination in goods and services, made under the Equality Act 2006, despite the claims of Catholic adoption agencies that they would rather close than place children with same-sex couples.

Legal issues for Faith Schools in England and Wales

Abstract: Faith schools are controversial. There is nothing new about this. State funding for the schools of the established church was historically objectionable to those who dissented from that establishment. Funding for any religious school has always been objectionable to secularists, who have increased in number and influence as society has become increasingly secular. More recently, the Muslim, Hindu and other faiths of the ethnic minorities of England and Wales have begun to utilise provisions that came into being with the Christian churches in mind. This had led to objections from those who are critical of the multicultural approach which has evolved since the Second World War as a response to extensive immigration from the New Commonwealth. This paper examines whether any of the political criticism of faith schools might give rise to legal challenges, now that rights under the European Convention on Human Rights are directly enforceable. In order fully to appreciate the legal arguments, it is necessary to have some understanding of the background. Accordingly, this paper begins by summarising the history of the matter before outlining the current position. An examination of the main criticisms of faith schools follows, and the paper concludes with consideration of a variety of legal arguments.

And Then There Was One: Freedom of Religion in Canada – the Incredible Shrinking Concept

Abstract: Defining religion for the purposes of constitutional or human rights protection is a challenge shared by UK and Canadian courts in this era after the enactment of the Human Rights Act 1988 and the Canadian Charter of Rights and Freedoms 1985, respectively: neither defines what is to be protected. Canadian courts have been impressed with this task since 1982 and, unsurprisingly, the Supreme Court of Canada (SCC) has considered the content and scope of section 2(a), the fundamental right to freedom of conscience and religion, on a number of occasions, most recently in Syndicat Northcrest v Amselem. The outcome in Amselem is a salutary reminder that, for post-modern courts, religion can be whatever they want it to be, and, indeed, be nothing in particular, which merits protection or not at the whim of these courts. In Amselem, a 5�4 majority of the SCC reduced religion for Charter purposes to any beliefs which the complainant calls religion and persuades a court to be sincerely held. A court then has the discretion to decide whether to extend legal protection to those beliefs (and their allegedly offensive practice) without giving credible reasons beyond the complainant's sincere belief in them. Amselem may, therefore, be of considerable interest to British lawyers regarding the potential lurking within ostensibly generous constitutional protections for religion ultimately to reduce religion to nonsense undeserving of legal protection

The pursuit of a canonical definition of membership of the church of Ireland

Abstract: This paper pursues a canonical definition of membership of the Church of Ireland. Both civil and Church laws presuppose that membership is defined; clergy rely on definitions, both formal and informal. In Ireland, freedom of religion is guaranteed and the courts are reluctant to interfere in the internal affairs of religious entities. Churches are voluntary associations, and church members are bound, inter se, by the church's internal laws as a matter of contract; this is given statutory expression in the Irish Church Act 1869. While the law of the Church of Ireland presents no unified definition of membership, the concept is utilised: strata of membership are manifest in a multiplicity of terminologies and roles. In the dynamics discerned in Church laws (not least the Preamble and Declaration and the Constitution of the Church of Ireland) a nascent definition of membership is detected. Comparison with the Anglican Communion and the ecumenical arena exposes weaknesses in the laws of the Church of Ireland. History indicates that membership was recognised and relied on in an establishment context, but not defined. In this paper, an anatomy of a canonical definition of membership that transcends such self-defining models is posited, based on the proposition that membership is more than what people say they are.

Gods and Services: Religious Groups and Sexual Orientation Discrimination

Abstract: Exemptions for religious groups from generally applicable laws are by no means unusual, especially in the field of discrimination law. However, exemptions from laws prohibiting discrimination on grounds of sexual orientation have proved particularly controversial. The legality of exemptions in regulations prohibiting discrimination on grounds of sexual orientation in the employment sphere has been the subject of judicial review and the scope of those exemptions has also been judicially examined. The extension to prohibit discrimination on grounds of sexual orientation in the provision of goods and services has proved controversial, and case law on the extent of the religious exemption included in the British regulations is awaited. In the meantime, a recent judicial review of the corresponding Northern Ireland regulations, which were enacted prior to the British regulations, may be illuminating.

The first ten years of the Centre for Law and Religion, Cardiff University

Abstract: On 8–9 July 2007 at Brecon Cathedral, members of the Centre for Law and Religion held an inaugural annual away day to review its work and plan long-term strategy ahead of the tenth anniversary of the Centre in 2008. The success of the LLM in Canon Law, the first degree of its type at a British university since the Reformation (set up in 1991 with the support of the Ecclesiastical Law Society), led those involved in that course and others at Cardiff Law School to recognise the need for a community of scholars dedicated to the study of law and religion. The Centre was established in the summer of 1998 to promote research and its dissemination in this field. It was established with the approval of the university and the encouragement of the Department of Religious and Theological Studies. Its activities are carried out in relation to the theory and practice of substantive law concerning religion, the focus being principally upon religious law (especially canon law) and national and international law affecting religion, with regard to their historical, theological, social, ecumenical and comparative contexts.

Instruments of Faith and Unity in Canon Law: the Church of Nigeria Constitutional Revision of 2005

Abstract: The Church of Nigeria's canon law revision of 14 September 2005 redefined the terms of inter-provincial Anglican unity from a focus on communion with the Archbishop of Canterbury to communion based explicitly upon the authority of scripture and historic doctrinal statements. This paper will examine the revision as an ecclesiastical reform connected to, yet independent from, the current controversy over human sexuality. Pertinent issues of episcope and ecclesial communion as they are affected by the canon law change will then be examined. Finally, the ecumenical implications of the revision will be discussed, with particular reference to the Anglican�Roman Catholic dialogue and the �continuing� churches of North America

Towards a Theory of Human Rights: Religion, Law, Courts Michael J Perry Cambridge University Press, Cambridge, 2007, xiii + 253 pp (hardback £40.00) ISBN: 978-0-521-86551-7

Abstract: This undistinguished doggerel serves Vonnegut’s larger purpose, for it points up humankind’s need to invest life with meaning. Dwelling on this need, Vonnegut identifies it as finding expression in bodies of religious faith that he regards as ‘nothing but lies’. Vonnegut thus traverses terrain that Michael Perry also moves across in Towards a Theory of Human Rights. Perry identifies the morality of human rights as giving expression to a quest for meaning. Moreover, he sees this quest as being about more than the impulse to wonder ‘Why?’ He argues that we cannot offer an adequate account of the morality of human rights unless we see it as giving expression to large ontological assumptions (which concern the nature of existence) rather than lies. Perry identifies ‘the morality of human rights’ as ‘the dominant morality of our time’ (p 4). He also describes it as ‘global’ and thus unique in human history. However, this morality is not ‘well understood’. This leads Perry to concur with John Searle, who has argued that we lack ‘a clear theory of human rights’. Perry also agrees with Searle on the point that the work involved in elaborating such a theory is ‘just beginning’. Perry is, however, clear on the question as to how the morality of human rights has gained the currency that it now enjoys. Looking back on the ‘moral landscape’ of the twentieth century, Perry finds it to be, in many respects, ‘bleak’ (p 4). The data that he presents certainly support this conclusion: 109 million people died in wars, while many more millions perished as a result of, inter alia, slave labour and genocide. But Perry does not explain the ‘emergence . . .

The Archbishop and Marital Pluralism: An American Perspective

Abstract: The Archbishop of Canterbury, Dr Rowan Williams (head of the worldwide Anglican Communion), set off an international firestorm on 7 February 2008 by suggesting that some accommodation of Muslim family law was �unavoidable� in England. His suggestion, though tentative, prompted more than 250 articles in the world press within a month, the vast majority denouncing it. England will be beset by �licensed polygamy�, �barbaric procedures� and �brutal violence� against women and children, his critics argued, all administered by �legally ghettoized� Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim sharia with the common law, other critics added. The horrific excesses of their religious courts � even calling the faithful to stone innocent rape victims for dishonouring their families � prove that religious laws and state laws on the family simply cannot coexist. Case closed.

Christ and Human Rights: The Transformative Engagement George Newlands Ashgate, Aldershot, 2006, ix + 218 pp (hardback £55.00) ISBN: 978-0-7546-5201-4; (paperback £16.99) ISBN: 978-0-7546-5210-6

Abstract: was to stop the state interfering in religion rather than the reverse. Witte understandably wants to see a return to a more flexible and local interpretation of the separation rule and an end to the aggressive ‘religion of secularism’, which is a break with American roots and which does nothing but inflame religious fundamentalism. This, like all the chapters in the book, is the fruit of a deep scholarship and familiarity with documentary sources. The American chapters are a brilliant example of the pursuit of moral truth through historical research.