Histories of Law and Religion

Abstract

THE LAW OF ORGANIZED RELIGIONS: BETWEEN ESTABLISHMENT AND SECULARISM By Rivers, Julian Oxford, UK: Oxford University Press, 2010 Pp. 400. Hardcover, $120.00. CHRISTIAN SLAVERY: CONVERSION AND RACE IN THE PROTESTANT ATLANTIC WORLD By Gerbner, Katharine Philadelphia, PN: University of Pennsylvania Press, 2018 Pp. 296. Paper, $24.95. LAW AND IDENTITY IN COLONIAL SOUTH ASIA: PARSI LEGAL CULTURE, 1772–1947 By Sharafi, Mitra Cambridge, UK: Cambridge University Press, 2014 Pp. 368. Paper, $36.99. In November 2018, President of Ireland Michael D. Higgins signed into law the thirty-seventh amendment to the Irish Constitution, removing the word “blasphemous” from Article 40.6.1.i (which prohibited “the publication or utterance of blasphemous, seditious, or indecent matter”). A crime since the document’s 1937 ratification, the blasphemy provision was scrapped after a public vote in which nearly sixty-five percent of participants agreed to its removal. Ireland’s Constitution can only be changed by referendum. The blasphemy vote was one of several such referenda held in recent years. It followed the May 2018 decision to repeal the eighth amendment (which, by giving equal legal status to both the fetus and the woman carrying it, criminalized abortion) and 2015’s equal marriage referendum, in which Ireland became the first country to legalize same-sex marriage by popular vote. Given that the official Catholic hierarchy campaigned heavily against both proposals, these votes were read as evidence that the Church was no longer the primary guiding force for the Irish people. For many outsiders, this spate of referenda—and the changing place of the Catholic Church that they were taken to signify—was met with glee: proof that the arc of history bends toward social liberalism. If conservative, religious Ireland could vote to legalize same-sex marriage, the New Yorker breathlessly suggested, so too could Mississippi (Sorkin 2015)! While some celebrated, however, others wondered how bans on abortion and blasphemy could have survived so late into the twenty-first century. “The population has moved on, [people are] no longer controlled by the Catholic Church, but a lot of the laws that were put in place are still there,” argued Michael Nugent, the head of Atheist Ireland and a veteran campaigner against the blasphemy law. “We have to chip away at them and get the state to catch up with the people” (Graham-Harrison 2018). But what would this “catching up” look like? Narratives of legal and cultural progress in which conservative religious shackles are slowly shed may make for good copy, but they rarely reflect the complicated reality governing the interaction of law, politics, and religion in contemporary nation-states. Indeed, studying the historic interaction of religion and law in named polities—that is, the law’s regulation of religion, religion’s influence on legal norms, and the semisubmerged theological underpinnings of many contemporary legal categories—is more likely to lead to recognition of the contingency of these relationships than to an acceptance of the “tidy stories” in which one is slowly filtered out from the other (Johnson, Klassen and Sullivan 2018, 5). This review offers three case studies as an introduction to historical accounts of law and religion. Focusing on the law’s regulation of religion and religion’s salience to law in post-Reformation England, the seventeenth-century Caribbean, and British-controlled India, these historical investigations of the law-religion nexus shed light on the broader contexts in which states, constitutions, communities, and “religions” are formed and governed. In particular, they emphasize the ways in which legislation concerning “religion” has involved the production and regulation of difference in multicultural, multiethnic, and multireligious states. This is demonstrated by, inter alia, the changing place of the established church in England, where the distinction between Catholic and Protestant has been somewhat superseded by the distinction between religion and the secular; the role of Christian missionaries in the racialization of slavery in the Americas, where legally enshrined Protestant supremacy developed into white supremacy; and the strategic mobilization of the law in India, where the embrace of litigation cemented a distinctive ethnoreligious identity among Zoroastrian Parsis. As all three regions struggle with political polarization and the normalization of ethnonationalism, these works shed light on the historical developments underlying such divisions, offering much needed context for scholars working in and on these countries today. If “law and religion” is a growing subfield of legal and/or religious studies, it is one that raises definitional issues familiar to scholars of both. So notes Julian Rivers’ The Law of Organized Religions, which begins: “This is a systematic study of English law as it applies to organized religions. None of these terms is particularly satisfactory” (vii). Given this difficulty, Rivers’ ability to synthesize centuries of legislation and legal cases into a coherent narrative is impressive. Beginning with the Roman conquest of Britain circa 43 CE, he provides an overview of the legal regulation of religion(s) to the present day, albeit with a focus on developments from the nineteenth century onward. It is an undeniably ambitious project, not least because, as he puts it, there is no clear “constitutional principle” that could be said to govern organized religion in English law (345). The narrative he tells is one of rising religious diversity (and tolerance of that diversity) alongside the emergence of a commonly held belief that church and state ought to be kept separate. By the mid-nineteenth century, English law had begun to move from the assumption that all religions were unlawful unless they were specifically recognized and provided for to the assumption that all religions were lawful so long as they were not outlawed. In this way, the “changing law of Church and State [is characterized by] a slow transition from the maintenance of one true religion to the principle that there is, in law, no false religion” (24). (Another way of putting it, as Rivers intimates, is that all religions are now recogniszd as being equally false, legally speaking.) Given the coterminous fact of religious establishment and separationist assumptions, the Church of England (CoE) has come to function as a kind of paradigm for church-state engagement, normalizing the presence of religion in public life for both established and nonestablished traditions. “This dynamic tension,” Rivers suggests, “has been the substitute for any statement of constitutional principle” (345). This is a story in which religious establishment and religious pluralism, although initially opposed, increasingly rely on one another to justify their place in the public sphere. Establishment continues, but it is no longer the explicitly discriminatory, punitive regime of prior decades. Indeed, representatives of the established church increasingly seek to speak on behalf of those framed, in the parlance of our times, as people of faith (as opposed to people of a particular faith, religion, or tradition)—a sharing of privilege only thinkable in a context where the critical difference is no longer that between Anglicans and Catholics, but between people “of faith” and those who do not so identify. (“Religion,” as former Archbishop of Canterbury Rowan Williams once put it, is increasingly seen to be the preserve of “oddities, foreigners and minorities” by members of the political class [Batty 2009]; and such oddities must stick together.) While this move toward religious pluralism has made it easier for members of nonestablished traditions to organize their worlds according to religious precepts and practices, it has also been accompanied by a “thoroughgoing process of secularization” that Rivers worries will impact this relatively newfound ability (25). In particular, he argues that the state’s tendency to view religious liberty as a matter of individual conscience (as opposed to actions, practices, and community norms and standards) is a troublingly narrow understanding of what religious freedom means (30–36). This strand of analysis runs throughout the book, which is critical of legal efforts to enforce normative, romanticized visions of what religion “is” or should be (for example, through requiring religious organizations to be “publicly beneficial” for the purposes of charity law, or by insisting that these organizations comply with equalities legislation in the same way other associations are expected to). Following an initial overview of the history of English law and religion, the book then adopts a thematic approach, discussing legislation and case law relating to, among others, ministers of religion; chaplaincies; faith-based welfare; and religious schools. Rivers does an admirable job of highlighting the ambivalence that seems to undergird much of the relationship between religious organizations and the law. For example, Chapter Three focuses on what he terms “the centre of the law of organized religions,” that is, “the legal constitution of religious bodies” (72). Historically, this relationship has been defined by ignorance or hostility, at least for nonestablished traditions. Roman Catholic and Jewish organizations, for example, could be easily disrupted by a legal system that did not recognize their institutional structures or social forms. More recently, however, the situation has been marked by a different kind of tension, one in which judicial oversight is simultaneously requested and resented. Religious organizations may seek the protection of the law, but they are also wary of submitting themselves to secular power. Similarly, the courts are keen to protect religious citizens even as they are wary of venturing into disputes that might be deemed “theological.” As a result, today’s English judges are (in theory) less willing to rule on issues relating to doctrine than their nineteenth-century forbears, either these in or to the of a Rivers suggests, not as a of the between regulation and but there are of and as to its If a religious a on an that the as or theological (as opposed to there may be the courts the these judges between theological and legal is, of a matter of A is in the state’s regulation of religious as which one of the of church-state law. the of New a faith-based no longer a historic but have been as of a of a tendency to public to In to with the and other Protestant the state also and the of faith are While this has been by many religious Rivers notes that it has not come state to state The of religious to and that to equalities legislation “the to which the law of is into a in which only specifically religious and As faith are a particularly clear of Rivers’ they efforts to recognize religious pluralism by on a by also secular norms and that as a to these Rivers’ is not only It is also in a of what he the of is critical of efforts to church and state and worries state into religious that although courts are increasingly willing to recognize that religious issues are they to to of the public Indeed, he that and diversity have the to in the one this will influence to the may with the that state efforts to by religious on the of or (for example, as the of are as after at least some of the for such norms from the these could as easily that these religious are by their as that their religious are by the there is a to be made that inter alia, and should be in of religious and Rivers for religious on these he to with the fact that religious liberty for some may come at the of and that is by the fact that religious is place at the same as the of secular and assumptions, on religious organizations not ought to be these would be for not to religious liberty as an In the since The Law of Organized was first religion and have to make is some evidence that judges have taken on Rivers’ of state for example, which held that Christian could not be to a with the the case law Rivers’ view that there is no “constitutional principle” governing this (345). In legal more the situation is For this of principle is A coherent of law would religious and individual citizens to where they what is expected of and from which laws they can For these the of a of religion in English law. For our however, the English case is it a guiding the law is of the fact that it has developed in to political both and to the of tolerance and as to be and to the in religious by the of As Rivers puts it, “The relationship between law and religion in any country is a of historical and England is for the legal likely to from its from the In a increasingly the regulation of religious diversity a and the “law of organized will be an of legislation and litigation long is this more than in the of and religion in what Katharine Gerbner, in recent book Christian “the Protestant on from the and from the through to the late how Protestant missionaries were in the legal of white supremacy and slavery in the More the move from Protestant supremacy (in which Protestant was with liberty and political to (in which although it was deemed with to white supremacy which than religion, had the of In so to of the and and a somewhat romanticized of Protestant missionaries as the of By how these missionaries to slavery to their Christian to legislation that Protestant status was with If their can be as the of the they should also be the long history of for of these to the lot of contemporary white supremacy has its in their efforts to this of This is an As much historical on in the focuses on its relationship to the not for their to such as the and have had scholars a into their As a of those with the for from the these Protestant missionaries and a for Christian slavery that the for the of the and nineteenth focuses on to the of from the to the late In the were that As they were opposed to the religious of those they had and missionaries with By the of the century, however, the emergence of the doctrine of Christian slavery had many such to the presence of some of as a means of and than their a of and legislation to make the case that and missionaries a role in this the for a to Chapter for example, which the for the of the in efforts to focuses on the of named and in New and to the of Protestant supremacy by the of with laws to the of Christian all to make a that they did not seek of any to from the and to their Chapter Christian to the in legislation of the word with the word as a of While have long recognized that from the this by on the relationship between the of and the of In for example, this salience in to the but population of By the late century, some members of this community were for according to English law, to be and Given that could all these to the relationship between and political The result, was the legal of a for this growing community from the to vote or for For example, between and the was rarely in Indeed, it three in years. its between and which the community was in the first of the century. The of the by an As the century, had as the primary of such as the for the of and white and the to and preserve the of legally both and of to the status of a of their religious or cultural While these to place throughout the This the in New and the of which to to the of by a that “the of not the of the as to or While had been a in the legal of those example, as in the case of who for freedom in in on the of and of of the century the of freedom from the context in which the of historical on and slavery in and the focuses on and where were into the Catholic Church against their some in which Protestant and Catholic missionaries and could one efforts at and In this way, slavery in to Catholic Similarly, among the Protestant a role in the different to for the of The Church, for example, in to from the Christian does not away from the and underlying one of the that of While some scholars the for and/or (in to religion by that one one system for it than the of to recognize this tension, a of and how and their in Christian for many some of which would have their recognized the of Protestant some as a way of and as a means of or slavery some will have been of the or of will have involved a of some example, those of have been out against the of or The case of a on in is a of the of for the and of While the the of white named is not It is likely that was by it would social or or not it an had a narrow of The same is true of the many other or with to their was an in a context of and and are “the and missionaries in the and a and religious for a system of This and to the former on which Christian Given the out and by to book is It is an for scholars and to and in our While some have or religious others the law to such was the case with Zoroastrian in the lead up to embrace and of law is the of Mitra Law and in Focusing on of the legal system from to both the of a system of law and interaction with the legal system as legal to law, and the law that controlled them by into the legal system than to English norms or their identity to the of the of them to its and to protect themselves by interaction with the the did the the of of at the of the legal and political 5). by the ways in which Zoroastrian from other in British-controlled circa While and were of law law were taken to legal As they were according to the laws of By the of a century however, the situation was only had the courts to a of law, but they had also some of the and were in English law and both working in courts and them to disputes with their Parsis. in legal was by what a In the century, the community was made up of throughout in where the community was the were only percent of the they made up percent of involved other so in the The is In to being willing to those from the community to were also willing to legalize Given that might have in a to issues the community out of a to interaction with or regulation by the seems to than on or doctrine as an focuses on the institutional that to to law. notes that they did not have at the community A there was no clear hierarchy in and the role was one of than the provision of or will to the the of a legal to or which law was an and subfield of religious (72). other in that recognized law could to had come to from between the and centuries no such of law to which to of their had been in of in other of religious may have been as a of changed the organized themselves into that and for the of legislation to marriage and English legal norms with those that this their system of law, a system by and In marked to the situation and communities, the of which were by a law system that on than were to their community and to their understanding of also how such the law to of particular is of which a role in to the as a of community While the of and in has on of a of cases to emphasize the of studying between This is a to the on and and the cases to this and on and of the racialization of community For both and the century a focus on the of as a of true This is in cases such as the of a was into the Zoroastrian religion at the of was likely was as been to an Christian This a of to seek to from the members of the community could the and the The presence of the would a the of community was the religious and or and on the of the first of the (and a of a understanding of the in held that although could be to the on a was not to by decision an increasingly of identity not only on and religion, but on as as a spate of against those who a light on “changing and religion this For a community that their distinctive identity would unless was “the of the the of of suggests, the focus on as a of the of or could not to the laws they to of the and by But being was no longer the Zoroastrian what was it In as an Given the that so it is no that these so out in (and the role of the law in of it is no that a and of was also a is in of the impact of legal analysis of and individual legal all that made law was not Zoroastrian as much as it was the fact that made also of that “law also made the for example, in the way legal this of the relationship up much less in the and the is to and were not more by legal than is as the fact that is working with historical it to the impact of these cases on an it a not least the religious and or cemented by the law system so in contemporary this with a As will no have not a not in the study of the If has not with in the focus this review on legal to the of law and the of one is that the present on the are with other tendency to between to from one context to or to relationships between and for example, that the present do not the that view today’s as the of the is to in a that its from the and works to them are what is the three is how contemporary much of the historical In England, the Americas, and India, legal disputes on the of ethnoreligious to make In all three the history the by the of a on the of for example, with the legal establishment of in England, as Julian Rivers does in The Law of Organized Similarly, the into the system studying the racialization of slavery in the century, as Katharine Christian the contemporary to the and rule to the law of which Mitra Law and such light of to be the is equally As scholars of law and religion, must be to the both and of of religious and to Ireland’s recent of constitutional who can both The New and Atheist Ireland’s Gerbner, Rivers, and for of law and religion to