Tag Archives: Comparative Law and Religion

Wielander, “Christian Values in Communist China”

The rise of Christianity as a social force in China (unlike the decline of chinaChristianity as a social force in the West) is an underreported story. Even well-informed analysts who look to China as a rising power sometimes ignore it. This month, Routledge releases the paperback version of what looks to be an interesting corrective, Christian Values in Communist China, by Gerda Wielander (University of Westminster). The publisher’s description follows:

This book argues that as new political and social values are formed in post-socialist China, Christian values are becoming increasingly embedded in the new post-socialist Chinese outlook. It shows how although Christianity is viewed in China as a foreign religion, promoted by Christian missionaries and as such at odds with the official position of the state, Christianity as a source of social and political values – rather than a faith requiring adherence to a church is in fact having a huge impact. The book shows how these values inform both official and dissident ideology and provide a key underpinning of morality and ethics in the post-socialist moral landscape. Adopting a variety of different angles, the book investigates the role Christian thought plays in the official discourse on morality and love and what contribution Chinese Christians make to charitable projects. It analyses key Christian publications and dedicates two chapters to Christian intellectuals and their impact on political liberal thinking in China. The concluding chapter highlights gender roles, the role of the Chinese diaspora, and the overlap of the government and Christian agenda in China today. The book challenges commonly held views on contemporary Chinese Christianity as a movement in opposition to the state by showing the diversity and complexity of Christian thinking and the many factors influencing it.

“Religion and Legal Pluralism” (Sandberg, ed.)

In July, Ashgate will release “Religion and Legal Pluralism” edited by Russell Sandberg (Cardiff University, UK). The publisher’s description follows:

In recent years, there have been a number of concerns about the recognition of religious laws and the existence of religious courts and tribunals. There has also been the growing literature on legal pluralism which seeks to understand how more than one legal system can and should exist within one social space. However, whilst a number of important theoretical works concerning legal pluralism in the context of cultural rights have been published, little has been published specifically on religion. Religion and Legal Pluralism explores the extent to which religious laws are already recognized by the state and the extent to which religious legal systems, such as Sharia law, should be accommodated.

Oxford Conference on Magna Carta (June 21-24)

The International Center for Law and Religion Studies and the Oxford Journal of Law and Religion will host the 2015 Oxford Conference next month. This year’s theme is “Magna Carta and Freedom of Religion or Belief.” Here’s a description:

The International Center for Law and Religion Studies, in cooperation with the Oxford Journal of Law and Religion, is hosting its 2015 Oxford Conference, June 21-24, 2015, at St. Hugh’s College, Oxford. The event will begin with dinner on Sunday evening and continue with presentations on Monday addressing the conference theme, Magna Carta and Freedom of Religion or Belief. On Tuesday, participants will visit Runnymede and locations in London, with dinner at Inner Temple, featuring keynote speaker Rt Hon Lord Igor Judge. On Wednesday, all participants are invited to join, once again at St. Hugh’s College, in the Oxford Journal of Law and Religion Academy.

For further details, click here.

Routledge Handbook of Law and Religion (Ferrari, ed.)

In March, Routledge released its new Routledge Handbook of Law and Religion,rout edited by Silvio Ferrari (University of Milan). The publisher’s description follows:

The field of law and religion studies has undergone a profound transformation over the last thirty years, looking beyond traditional relationships between State and religious communities to include rights of religious liberty and the role of religion in the public space.

This handbook features new, specially commissioned papers by a range of eminent scholars that offer a comprehensive overview of the field of law and religion. The book takes on an interdisciplinary approach, drawing from anthropology, sociology, theology and political science in order to explore how laws and court decisions concerning religion contribute to the shape of the public space.

Key themes within the book include:

  1. Religions symbols in the public space;
  2. Religion and security;
  3. Freedom of religion and cultural rights;
  4. Defamation and hate speech;
  5. Gender, religion and law;

This advanced level reference work is essential reading for students, researchers and scholars of law and religion, as well as policy makers in the field.

“Religion and the Secular State” (Martinez-Torron & Durham, eds)

This month, Complutense University (Madrid) has released an updated version of Religion and the Secular State: National Reports, edited by Javier Martínez-Torrón (Complutense) and W. Cole Durham, Jr. (BYU). The publisher’s description follows:

Recent years have seen religion assume an increasingly visible place in public life, with mixed results that have been aptly described in terms of the “ambivalence of the sacred”. Every state adopts some posture toward the religious life existing among its citizens. That posture is typically contested, leading to constant adjustments at the level of constitutional and statutory law, as well as constantly evolving judicial and administrative decisions. While some states continue to maintain a particular religious (i.e., non-secular) orientation, most have adopted some type of secular system. Among secular states, there are a range of possible positions with respect to secularity, ranging from regimes with a very high commitment to secularism to more accommodationist regimes to regimes that remain committed to neutrality of the state but allow high levels of cooperation with religions. The attitude toward secularity has significant implications for implementation of international and constitutional norms protecting freedom of religion or belief, and more generally for the co-existence of different communities of religion and belief within society. Not surprisingly, comparative examination of the secularity of contemporary states yields significant insights into the nature of pluralism, the role of religion in modern society, the relationship between religion and democracy, and more generally, into fundamental questions about the relationship of religion and the state.

This book contains national reports on the topic “Religion and the Secular State” from 58 reporters representing 43 countries, plus a general report written by Professors Javier Martínez-Torrón and W. Cole Durham, Jr. The reports, originally prepared for the 18th World Congress of the International Academy of Comparative Law, were published in Interim form in 2010. This final volume, with updated and sometimes extensively modified reports, was prepared to coincide with the 19th Congress in Vienna in July 2014.

“Crossings and Crosses” (Strandbrink et al., eds.)

This April, De Gruyter Press will release “Crossings and Crosses: Borders, Educations and Religions in Northern Europe” edited by Peter Strandbrink, Jenny Berglund, and Thomas Lundén, (Södertörn University, Stockholm, Sweden). The publisher’s description follows:

Crossings and CrossesDealing with different regions and cases, the contributions in this volume address and critically explore the theme of borders, educations, and religions in northern Europe. As shown in different ways, and contrary to popular ideas, there seems to be little reason to believe that religious and civic identity formation through public education is becoming less parochial and more culturally open. Even where state borders are porous, where commerce, culture, and trade as well as associative, personal, and social life display stronger liminal traits, normative education remains surprisingly national. This situation is remarkable and goes against the grain of current notions of both accelerating globalisation and a European regional renaissance. The book also takes issue with the foundational tenet that liberal democracies are by definition uninvolved in matters concerning faith and belief. Instead, an implied conclusion is that secular liberal democracy is less than secular and liberal – at least in education, which is a major arena for political-cultural-ethical socialisation, as it aims to confer worldviews and frameworks of identity on young people who will eventually become full citizens and bearers/sharers of prevailing normative communities.

Hayes, “What’s Divine about Divine Law?”

This June, Princeton University Press will release “What’s Divine about Divine Law? Early Perspectives” by Christine Hayes (Yale University).  The publisher’s description follows:

What's Divine About Divine LawIn the thousand years before the rise of Islam, two radically diverse conceptions of what it means to say that a law is divine confronted one another with a force that reverberates to the present. What’s Divine about Divine Law? untangles the classical and biblical roots of the Western idea of divine law and shows how early adherents to biblical tradition—Hellenistic Jewish writers such as Philo, the community at Qumran, Paul, and the talmudic rabbis—struggled to make sense of this conflicting legacy.

Christine Hayes shows that for the ancient Greeks, divine law was divine by virtue of its inherent qualities of intrinsic rationality, truth, universality, and immutability, while for the biblical authors, divine law was divine because it was grounded in revelation with no presumption of rationality, conformity to truth, universality, or immutability. Hayes describes the collision of these opposing conceptions in the Hellenistic period, and details competing attempts to resolve the resulting cognitive dissonance. She shows how Second Temple and Hellenistic Jewish writers, from the author of 1 Enoch to Philo of Alexandria, were engaged in a common project of bridging the gulf between classical and biblical notions of divine law, while Paul, in his letters to the early Christian church, sought to widen it. Hayes then delves into the literature of classical rabbinic Judaism to reveal how the talmudic rabbis took a third and scandalous path, insisting on a construction of divine law intentionally at odds with the Greco-Roman and Pauline conceptions that would come to dominate the Christianized West.

A stunning achievement in intellectual history, What’s Divine about Divine Law? sheds critical light on an ancient debate that would shape foundational Western thought, and that continues to inform contemporary views about the nature and purpose of law and the nature and authority of Scripture.

Ironies in Indiana

Some readers have asked me what I think about the Indiana RFRA controversy, as an academic who studies law and religion. To my mind, opponents of the law have succeeded in creating a false sense of crisis about the evil this allegedly unprecedented law would unleash in America. In this, they have been greatly assisted by the media’s framing of the issue and and by the support of corporate titans like Apple and Walmart, which have decided to intervene in the dispute–incidentally proving, as Justice Alito argued in Hobby Lobby, that for-profit corporations sometimes do express goals other than merely making money.

In addition, it seems to me that the controversy contains three very significant ironies, two for the law’s opponents and one for its supporters.

First, notwithstanding opponents’ efforts to portray the Indiana statute as an innovation, the balancing test it establishes is nothing new. The test, which holds that government cannot impose substantial burdens on citizens’ religious exercise without showing a compelling need to do so, and without choosing the least-restrictive means for doing so, was American constitutional law for decades, until the Supreme Court jettisoned it for most purposes in 1990. It is the test embodied in the federal version of RFRA, enacted without opposition more than 20 years ago; in the many state versions of RFRA; and in the constitutional law of many other states. Indeed, according to scholars Cole Durham and Brett Scharffs, the compelling-interest test is the majority rule in the United States today. It’s true that there are a couple of differences in the Indiana law, but those differences are pretty minor, and anyway the debate has not focused on them.

Even more: something like the compelling-interest test is the rule in liberal societies around the world. The European Convention on Human Rights, for example, provides that a member state can interfere with citizens’ exercise of religion only where the state shows that the interference is “necessary” to achieve an important interest. Many countries have similar balancing tests, including Canada, Israel, and South Africa. From a global perspective, there is nothing unusual about the Indiana statute.

Second, the Indiana statute leaves ultimate determinations to the courts. It does not, as some of its opponents  misleadingly claim, legalize discrimination against gays and lesbians. In the unlikely event that an Indiana business refused, in violation of any applicable anti-discrimination laws, to serve gay people, and claimed a religious justification for doing so (how many such businesses are there, anyway?), the case would proceed to litigation, in which a court would determine (1) whether requiring a business to serve gay customers is, genuinely,  a substantial burden on its religious exercise; (2) if so, whether the state’s interest in preventing discrimination against gays is compelling; and (3) whether there is some way other than requiring the business to serve gay customers that could advance that interest equally as well. I wouldn’t bet on the business’s chances in such a lawsuit. Given the great success supporters of gay rights have had in American courts in recent years, it is ironic that they would lose faith in the courts now.

And this leads to the third irony, one for the statute’s supporters. Some supporters evidently are confident the Indiana statute would allow a business to refuse, on religious grounds, to participate in same-sex wedding ceremonies—caterers and photographers, for example.  (This is not the same thing as refusing generally to serve gays and lesbians, incidentally, and it is not helpful to conflate the two situations). That’s why they are fighting so hard for the law. But it is not at all clear they are correct. Whatever one thinks about the merits of a religious exemption in these circumstances, it is uncertain that a court would actually rule in favor of the business. Maybe the business would prevail in a RFRA lawsuit, maybe not.

On the basis of distortions, mistakes, and uncertain predictions, we seem ready to abandon a foundational principle that exists, not only in American law, but in legal systems across the world. The New York Times refers, without irony, to “so-called religious freedom laws.” On Morning Joe this week, Mika Brzezinski suggested that stopping the Indiana statute would not be enough; it’s time, she hinted, to revisit the federal RFRA itself.  We seem ready, in other words, to take courts out of the business of protecting religious minorities. Does that seem a good idea?

Call for Papers: “Regulating Religion: Normativity and Change at the Intersection of Law and Religion”

NUSThe Faculty of Law at the National University of Singapore is soliciting papers for its upcoming conference, “Regulating Religion: Normativity and Change at the Intersection of Law and Religion.”   The conference will be held December 14-15, 2015.  A description of the conference follows:

In most eras and cultures, law and religion relate dialectically. Every major religious tradition strives to come to terms with law by striking a balance between the worldly and the spiritual, the structural and the mystical, the rational and the sacred. Every major legal tradition struggles to align its formal structures and processes with the beliefs and values of its people. Thus, while law and religion can be conceptualized as distinct spheres of human life, they do not exist independently but are constantly interacting with and influencing each other.

This workshop will engage emerging scholarship on the influence of religion on legal systems, both historically and currently, and vice versa. Regulation is our key focus. In simplest terms, we will consider how law regulates religion, and how religion responds to such regulations. The more complex question we ask is how the normativity becomes diversified and drives the regulatory dialectics between law and religion after the institutional development of the latter two. The workshop seeks to approach this question in three streams:

  1. Socio-political norms regulating religion. What social and political assumptions are we making when we make claims about the legitimate role of religion in public debate? What overarching social and political goals underlie how the law deals with issues of freedom of religion and freedom of religious expression? With the resurgence of religion into issues of public debate, how might religious considerations influence the formulation of contemporary legal norms, if at all?
  2. Constitutional and legal norms regulating religion. What can we learn from the different constitutional legal experiences and contexts of Asia and other parts of the world, given the importance of constitutional structures in framing, defining and governing the interactions of religion and law? What alternative models of arranging state and religion exist vis-à-vis the dominant constitutional model separating state from religion? How has the resurgence of public religion opened up the area of constitutional thinking?
  3. Religious norms regulating religion. What type of legal structures do religions have? How do religious traditions and communities perceive their interaction with religious laws? What demands do such internal rules make upon their religious faith and worship? Are all traditions ‘religio-legal’, i.e., as having claims that take the form of law over their adherents and others? What varying forms do they take? How do believers negotiate these internal rules and how can religious traditions change within this legal framework?

Information on the conference and paper submission guidelines can be found here.

Canada’s Hobby Lobby Moment?

Supreme Court justicesIn a landmark decision on March 19, the Supreme Court of Canada decided Loyola High School v. Quebec.  At issue in the case was whether Loyola High School, a private Catholic school, should be required to teach Quebec’s “Ethics and Religious Culture” curriculum in a “neutral” manner.  Loyola sought an exemption from the neutrality requirement when teaching the Catholic faith and the ethics portion of the course.  Although the Supreme Court divided 4-3 with respect to the rationale, it unanimously held that Loyola should be granted an exemption.

As Barry Bussey explains below, this case is significant because the Court came very near to granting corporations religious freedom rights (read Bussey’s full article here).  The extent to which corporations enjoy religious freedom protections was, of course, a controversial issue decided last year by the American Supreme Court in Hobby Lobby v. Burwell.  In that case, the American Court held that RFRA grants religious exercise rights to certain for-profit corporations.  It seems that the Canadian Supreme Court may be following the American lead, albeit incrementally. Here is Bussey (footnotes omitted):

While all seven members of the Court were of the view that Loyola’s freedom of religion was infringed, the Court split in its reasoning 4-3 over the issues of religious corporate rights and the remedy in the case. Both opinions held that religious freedom is not only an individual right but also includes communal dimensions. This is significant. Justice Abella recognized that “individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.” But she did not think it was necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter to decide the case. Religious freedom, she maintained, must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”

Justices McLachlin and Moldaver were unequivocal in their acceptance of the Charter’s protection of the “communal character of religion”:

The individual and collective aspects of freedom of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith.

MacLachlin and Moldaver held that a corporation was entitled to religious freedom protection as long as it was constituted primarily for religious purposes and operated in accordance with those religious purposes.

Since a corporate organization does not demonstrate a sincere belief as an individual, it must show that its belief or practice is consistent with its purpose and its operation. Such beliefs and practises are more static and less fluid than those of an individual, which makes the inquiry into past practises and consistency of positions more relevant than it would be if the claimant were an individual. In this case, the beliefs and practises of Loyola were consistent and ought to be protected. The Minister’s refusal to accommodate those beliefs was in violation of the Charter right.

McLachlin and Moldaver’s decision forms a great foundation for a future case to clearly outline the boundaries of the religious freedom for religious corporate bodies. It is an incremental development in the right direction.