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Published online by Cambridge University Press: 13 December 2013
In the increasingly complex conjunction of law and religion, one of the most crucial questions concerns the privileged place of religion among other convictional positions which are protected under Article 9 of the European Convention on Human Rights. This article argues the need for a trans-disciplinary approach to the question of definitions, importing insights from philosophy, sociology of law and neo-pragmatism. The aim is to elucidate the view that defining is both an art (in the discursive construction of its object) and a form of politics (as a regulative technology, through which the actual flux and complexity of human reality is brought under control). The question of what religion is (the ontological question) should be acknowledged as a jurisprudential red herring.
1 Sadurski, W, ‘On legal definitions of “religion”,’ (1989) 63 Australian Law Journal 834–843Google Scholar at 841. Consider, also, the contention of Baroness Scotland, debating the new definition of religion in Section 77 of the Equality Act 2006: ‘philosophical belief will take its meaning from the context in which it appears … philosophical beliefs must always be of a similar nature to religious beliefs’. HL Deb 13 July 2005, vol 673, cols 1109–1110.
2 Sadurski, W, Moral Pluralism and Legal Neutrality (Dordrecht, 1990)CrossRefGoogle Scholar, p 193.
3 Tribunal de Grande Instance de Lyon 1996, Mazier et autres, unpublished decision of 22 November 1996. Note that the question which social scientists were asked during the tribunal was whether, given prevailing contemporary definitions of religion in their discipline, scientology qualified as a ‘religion’.
4 Doe, N, Law and Religion in Europe: a comparative introduction (Oxford, 2011), pp 21–22CrossRefGoogle Scholar.
5 Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2009)Google Scholar, p 110, emphasis added.
6 Doe cites examples from Ireland: Planning and Development Act 2000, s 4(2) and Planning and Development Regulations 2001 SI 2001/600, 10. Doe, Law and Religion in Europe, p 110.
7 Ibid, p 183.
8 Sandberg, R, Law and Religion (Cambridge, 2011)CrossRefGoogle Scholar, p 42.
9 In Farley and Others v Westminster Bank [1939] AC 430, parish work, in general, was deemed to include work not of a religious purpose. In Re Simson [1946] Ch 299, the wording of the will was interpreted to clarify religious from charitable work.
10 Peter Petkoff makes the point that the religious symbols debate appears to have emerged around a very challengeable and monolithic understanding of the public and of its interest. Petkoff, P, ‘Religious symbols between forum internum and forum externum’ in Ferrari, S and Cristofori, R (eds), Law and Religion in the 21st Century: relations between states and religious communities (Farnham, 2010), pp 297–304Google Scholar, p 303.
11 Bradney, A, Religion, Rights and Laws (Leicester, 1993)Google Scholar, p 132.
12 Road Traffic Act 1988, s 17, and see X v United Kingdom (1978) 14 DR 234, in which a Sikh brought the case having been convicted 20 times for refusing to wear a helmet. It is interesting to note that Sikhs, having been granted the above exemptions, are denied certain forms of legal redress should they incur injury as a result of their refusal to wear a helmet. This fact prompts Mark Hill and Russell Sandberg to remark that the legal provision for Sikhs ‘owes more to the tradition of religious toleration than to any notion of religious liberty as a widespread right’. Hill, M and Sandberg, R, ‘Is nothing sacred? Clashing symbols in a secular world,’ (2007) Public Law 488–506Google Scholar at 489–490.
13 Slaughterhouse Act 1976, s 36, now contained in the Welfare of Animals (Slaughter or Killing) Regulations 1995 SI 731/1995.
14 R (Begum) v Governors of Denbigh High School [2007] 1 AC 100.
15 Billaud, J, ‘Visible under the veil: dissimulation, performance and agency in an Islamic public space,’ (2009) 11 Journal of International Women's Studies 120–135Google Scholar.
16 Daily Telegraph, 3 March 2005, available at <http://www.telegraph.co.uk/comment/telegraph-view/3615297/Religion-and-school-rules-must-both-be-respected.html>, accessed 10 October 2013.
17 For an overview of types of religious discrimination and persecution, see Gunn, T, ‘The complexity of religion and the definition of “religion” in international law,’ (2003) 16 Harvard Human Rights Journal 189–215Google Scholar.
18 Beckford, J, ‘Banal discrimination: equality of respect for beliefs and worldviews in the UK’ in Davis, D and Besier, G (eds), International Perspectives on Freedom and Equality of Religious Belief (JM Dawson Institute of Church–State Studies, 2002), pp 25–41Google Scholar.
19 M Evans, ‘Religious symbols: an introduction’, in Ferrari and Cristofori, Law and Religion in the 21st Century, pp 291–296, p 292, emphasis in original.
20 Ibid, 296.
21 For a fuller account of these two approaches, see Ahdar and Leigh, Religious Freedom.
22 United States v Seeger 380 US 163 (1965) at 185 per Clark J. The issue in this case was a claim for exemption from the military on the grounds that the claimant's religious training and belief stood in opposition to military service.
23 In the majority of cases, the results do not turn on the question of sincerity. An exception to this was United States v Kuch, 288 F Supp 439 (DDC 1968). This case is interesting for the fact that, although it found that the religion of the Neo-American was not ‘genuine’, the decision of the District Court to deny the claimant's religious freedom was tied, not simply to the operative definition of religion, but argued on grounds of public safety, health and order.
24 Evans, M, Religious Liberty and International Law in Europe (Cambridge, 2008) pp 290–291Google Scholar.
25 Barralet v Attorney-General [1980] 3 All ER 918. Russell Sandberg points out that the definition coined by Dillon J is now held to be authoritative and to constitute the common-law definition of the term. Sandberg, Law and Religion, p 44.
26 R v Registrar General, ex parte Segerdal [1970] 2 QB 697. It has been argued that this case was premised on the definition of worship rather than the definition of religion. See, inter alia, Sandberg, Law and Religion, p 43.
27 Claims taken to Strasbourg institutions include: communism, Hazar and Açik v Turkey App Nos 16311/90, 16312/90 and 16311/93 (EComHR, 11 October 1991); atheism, Angelini v Sweden App no 10491/83 (EComHR, 3 December 1986), (1986) 51 DR 41; and pacifism, Arrowsmith v United Kingdom App No 7050/75 (EComHR, 12 October 1978), (1978) 3 EHRR 218.
28 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 November 1950.
29 Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May 1993), (1994) 17 EHRR 397. The addition of the predicate ‘unconcerned’ is interesting. If it is intended to signify those who wish to lead the unexamined life, it is not clear how the question of protection would ever arise.
30 Lord Nicholls, Lord Walker and Baroness Hale in R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, at paras 24, 55 and 75.
31 Ahdar and Leigh, Religious Freedom, p 141, emphasis in original.
32 It is, however, rather troubling that Mason ACJ and Brennan J, in a discussion about the importance of marking out an area which can be recognised as religion, found it necessary to assert that freedom of religion is the paramount freedom of conscience. This would appear to be a circular reasoning which assumes the priority of a concept which has not been defined.
33 Doe, Law and Religion in Europe, p 23.
34 Ibid, p 24. Doe refers to Pitsillides v The Republic of Cyprus [1983] 2 CLR 374 and the UK Charities Act 2006, s 2(2)(c) and (h).
35 Sandberg, Law and Religion, p 57.
36 Williamson [2005].
37 Ibid [60].
38 Sandberg, R, ‘Church–state relations in Europe: from legal models to an interdisciplinary approach,’ (2008) 1 Journal of Religion in Europe 329–352CrossRefGoogle Scholar at 340.
39 Sandberg, Law and Religion, pp 193–194.
40 See Beckford, on the effects of education, social mobility and media exposure which have ‘eroded the possibility that religious organisations could control the uses to which their symbols would be put’. Beckford, J, ‘The politics of defining religion in secular society’ in Platvoet, J and Molendij, A (eds), The Pragmatics of Defining Religion: contexts, concepts and contests (Leiden, 1999), pp 23–40Google Scholar at p 25.
41 Kleinhans, M-M and MacDonald, R, ‘What is a critical legal pluralism?,’ (1997) 12 Canadian Journal of International Law and Society 25–46CrossRefGoogle Scholar at 46.
42 Note that the force of the term ‘minority’ here is to signify relations of power, not numerics: ‘the situation of a group which, no matter how large, is excluded from the majority, or else included as a fraction subordinated to a standard of measurement which makes the law and fixes the majority.’ Deleuze, G and Parnet, C, Dialogues (Paris, 1997)Google Scholar, p 128.
43 R Sandberg, ‘Church–state relations in Europe’, p 344.
44 In this context, reification signifies the process through which particular definitions and concepts burrow themselves into the moral imagination, so that they come to be accepted as reflecting what is ‘real’. The linguistic/constructive aspect of concept-building is then obscured.
45 ‘Monological’ is used here to signify an ideological stance which dictates the terms of religious debate in the public sphere, closing down dialogue and dealing with diversity through coercive policies of assimilation. In this respect, laïcité and theocracy move in the same direction.
46 The term ‘plurality’ is used to indicate demographic facts, as opposed to pluralism, which is reserved for the conscious acceptance of the presence of plural cultures and the consequent establishment of policy changes to reflect that.
47 Rorty, R, Philosophy and the Mirror of Nature (thirtieth anniversary edition, Princeton and Oxford, 2009)Google Scholar.
48 Rorty, R, Truth and Progress: philosophical papers (Cambridge, 1999)Google Scholar, p 204.
49 Gunn, ‘The complexity of religion’.
50 Brandom, R, Making It Explicit: reasoning, representing and discursive commitment (Cambridge, 1998)Google Scholar, p 601.
51 Handyside v UK App no 5493/72 (ECtHR, 7 December 1976).
