ISSN 1062-7421
Vol. 12 No. 3 (March 2002) pp. 132-138.

LAW AND RELIGION by Rex H. Ahdar (Editor). Burlington, VT: Ashgate Publishing Co., 2000. 229 pp. Cloth $99.95. ISBN: 1-84014-745-8. Paper $34.95. ISBN: 1-8401-757-1.

Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross.

LAW AND RELIGION is the second book to focus on issues regarding religion in an Ashgate series dedicated to the exploration of legal debates from an interdisciplinary and cross-cultural perspective. The first, LAW AND RELIGION IN CONTEMPORARY SOCIETY, Peter W. Edge and Graham Hardy, ditors,
was reviewed in the LPBR, Vol. 11 No. 11 (November 2001) pp. 532-534.

Like the earlier volume, LAW AND RELIGION is also not "conventionally comparative" in that it does not address a consistent set of questions or employ a common methodology. Rather it consists of a set of loosely connected essays with widely disparate subjects. As examples, one essay claims that religious law and secular law are virtually indistinguishable, another essay critiques the United States Supreme Court's religion clause doctrine, and another argues that intolerance against religious minorities has been important in child molestation cases.

In any book of essays as diverse as these, it is important to set out the theme or themes that organize the book. Ahdar suggests three: an argument against the secular state, a concern for promoting religious liberty but one which has ruled out separation as means to that end, and a concern for controlling some of the negative consequences of religious liberty.

According to Ahdar, law and religion are inextricably linked, and the secularization of society advocated and predicted by Enlightenment thinking did not materialize. In fact in the past twenty years there has been a religious revival because, it is argued, liberalism failed to fully appreciate the human need for meaning. Ahdar suggests that the connection between religion and law was never fully severed, as all legal systems are ultimately grounded in appeals to higher values, that is, religious appeals. Nor, in his view, should law and religion be separated, as both are "significant aspects of mankind's social existence" (p. 3).

Ahdar goes on to state that the religious revival has taken two different forms, a revival of support for traditional religion and the development of "new religious movements." He notes the "pervasiveness of the modern state (and the reach of the law) and the resurgence of religion" (p. 3), with these expansions colliding and creating tensions. Those religious movements that are intolerant of competing beliefs or that reject the modern state exacerbate such tensions. The challenge for law is "to call upon all its resources and wisdom to restrain antisocial excesses whilst still preserving religious liberty" (p. 5).

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Ahdar's empirical observations about the connections between religion and law are clearly correct on several counts, and find support in the essays that follow. First, religion does continue to be important for many people, and, second, religious beliefs do affect political behavior. It is also true that religion has a social dimension affecting one's standing in the community. Ahdar apparently assumes that these facts alone demonstrate that the effort to separate religion and government has been both futile and wrong-headed. However, these observations are at odds with separation only on a particular understanding of that argument, an understanding that is used more by its critics than its adherents. Even those justices of the United States Supreme Court who have been regarded as most separationist do not argue that
any contact between church and state is impermissible. Likewise, an argument that separation has failed because religion is thriving assumes that separation is inherently hostile to religion. At least some separationists argue, however, that separation actually benefits religion. This issue goes back to the Founding, with some commentators holding that Madison's support for separation was religiously grounded. Finally, many separationists fully appreciate the social dimensions of religion. and agree that religious preference very much affects one's social position. This is not, however, an argument against separation. On the contrary, separationists oppose government support for religion at least partially because of the consequences of such support would be to alter the social standing of an individual or
group based on religious preference. Thus before separationism can be dismissed as a means of promoting religious liberty and civic peace, it needs first to be properly explained and understood, and the arguments in its behalf need to be carefully examined.

In the second half of Ahdar's introduction he summarizes the essays that follow, and in so doing sees confirmation of his position regarding the inseparability of law and religion. With one exception, the essayists share Ahdar's orientation. Whether they speak to, or provide systematic support for, Ahdar's position is another matter altogether. On the whole, I do not think they do. It is also not clear how these essays fit together other than they have something to do with religion and law. Some, nonetheless, are interesting on their own merits.

Calum Carmichael, in his essay "The Ten Commandments: In What Sense Religious?" argues that law and religion are very similar enterprises. "The way in which religion attempts to establish authority for its claims differs little from comparable attempts on the part of the law" (p. 17). They share methodologies for arriving at rules of behavior. Both originate in human thinking about the proper way to order society, and both use appeals to a higher authority as a device to derive legitimacy. In secular law this authority consists of previously established community norms that appear just. In addition to sharing a common methodology, religion and law have influenced each other directly. Carmichael then refers to the Decalogue as a set of rules for human behavior, and discusses its origin and interpretation in detail.

Carmichael agrees with Ahdar's point that "every legal system needs some 'augmentation' of its rules- some supernatural imprimatur to lend authority to its contents" (p. 5), though Carmichael

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implies that the Bible is of human origin. A problem with a universal appeal to authority is that laws have enormous range, some majestic, others trivial. If higher authority covers not only notions of justice, but also rules of convenience--we need traffic regulations for our safety--such moral endorsement loses its meaning. It could also be argued that the reason we accept many laws as legitimate is not that their substance derives from a higher moral authority, but that we accept the lawmaking process--majority rule in a democracy--as itself providing the obligation to obey.

The next essay, " The United Nations and Freedom of Religion: The Work of the Human Rights Committee" by Malcolm D. Evans provides an empirical examination of the operation of international protection of religious liberty. Specifically he assesses the work of the Human Rights Committee, focusing on its interpretation of the International Covenant on Civil and Political Rights (ICCPR), especially its interpretation of Article 18. He argues that the HRC has been insufficiently protective of religious liberty, either because of an overly narrow definition of religion and religious practice, or in finding that a state interest in limiting religious practice was justified. According to Evans, this result was not compelled by Article 18 language, which was sufficiently imprecise to be read broadly or narrowly depending on the
inclinations of the interpreters. He concludes that while Article 18 promises broad protection for religious liberty, its practice is quite different.

Anyone who has followed the debates over the reading of the United States Constitution's free exercise clause will find much of this to be quite familiar. Beyond that, Evans' discussion of the interpretive problems involved in reading Article 18 is not only interesting in itself, but has relevance as well to the broader debates among constitutional scholars over interpretative methods. Evans provides support for those who argue that looking at language alone is often an insufficient guide to the
interpretation of legal texts, especially constitutions. He also shows how attitudes play a role in determining legal outcomes. These two points are well-supported.
His conclusion is less convincing because he fails to actually look at the state justifications that were employed and to then present a case that the balance struck was inappropriate.

Two other essays deal with international law and religious liberty. These articles do not, as one might have expected as a matter of logic, immediately follow the Evans discussion. In Chapter 7, Julian Rivers looks at how the United Kingdom's adoption of the Human Rights Act of 1998, particularly s. 13 (with its advanced protection of religious liberty) is likely to affect "the law of religious liberty and religious establishment in the U. K." In the course of this analysis, Rivers also discusses some of the probable consequences for the U. K. 's institutional structure. Rivers begins by describing the institutional and environmental setting within which the Human Rights Act will be implemented. The point of departure is that the U. K. has a long history of Christian religious establishments and privileges
for Christianity. Other religions were tolerated, but were not afforded equality. So for example, the law of blasphemy, prohibiting insults against the beliefs and feeling of a faith, applied only to Christianity. The state educational system also favored Christianity, and claims for exemptions from general law in order to accommodate the needs of religious obligation were more likely to be

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granted to Christians. This favoritism toward Christianity has softened but not disappeared. Rivers holds that the Human Rights Act is not likely to limit religious influence over law, but instead is likely to extend protections to non-Christians. Rivers also expects that the authority of judges is likely to be enhanced.

I found much of merit in this analysis. It has a great deal to say about how law can shift institutional power arrangements, in this instance courts gaining at the expense of the legislature, and the role of the legal and political culture in the definition of rights. Rivers, together with the other writers in this volume, focuses far more on assuring autonomy to religious institutions and expanding religious privileges than on limiting the influence of religion over law. The argument that separation of church and state might advance religious liberty is not even considered.

The final piece on this topic is by Sophie C. Van Bijsterveld. Starting with a goal "to explore and analyze the attitude towards, and understanding of religion in the international domain,"(p.164) she sets out two competing conceptions of religion, She is not concerned here with definitions, that is, whether a particular belief qualifies or does not qualify as religious, the sort of issue that comes up, for example, in evaluating who is entitled to conscientious objector status. Rather, she is interested in different conceptions of the nature of religion. Is it a private activity or a social activity? She compares what she describes as the liberal understanding of
religion with the sociological conception. In the liberal understanding religion is viewed as private; a line is drawn between a state actor and a private actor, and religious liberty is an individual right. This is a model she believes "echoes the American Jeffersonian notion of the 'wall of separation' between Church and state" (p.167). The sociological model by contrast recognizes that religion has a social dimension. Not only is religious practice often tied to institutions, but religion also affects culture, one's position in the community, and one's behavior. She goes on to assert that the liberal vision has dominated thinking in Western Europe, but
that is now changing.

She then provides an overview of "developments in law and policy with regard to religion" (p. 163). Though she makes some mention of courts, her focus is on principles as set out in international legislative bodies, the Council of Europe, the United Nations, the Organization for Security and Cooperation in Europe and the European Union. She argues that there is growing recognition within these bodies that religious liberty requires more than merely keeping government from acting so as to limit that freedom. It requires active government intervention, for example, intervention to provide opportunities for those in government institutions such as prisons an opportunity to practice their religion. She suggests as well that governments have a positive obligation to protect religious liberty in situations where
the deprivation comes from private activity.

Other essays deal with church and state controversies in the United States, where the debate is framed by the Supreme Court's interpretation of the religion clauses of the First Amendment, providing that " Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof". Michael McConnell shares Ahdar's ideological perspective, and argues for a shift in Supreme Court doctrine. He contends that Supreme Court's religion

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clauses jurisprudence is hopelessly confused, a confusion that he attributes to the Court's failure to "make up its collective mind about what purposes are to be served by the Religion Clauses" (p. 64). He goes on to argue that the Court's decisions would be both more coherent and more in line with the clauses' objectives of protecting religious liberty if it were to move from its current reading of the free exercise clause which requires no more than the government not target religion for disadvantage, to the approach it had taken from 1963-1990 under which government was required to make accommodations for religious practices "provided exceptions and accommodations can be made without excessive injury to important government interests" (p. 65). McConnell also advocates against reading the establishment clause as requiring separation of church and state, favoring instead the adoption of a neutrality principle, with neutrality defined as equal treatment of religion, rather than as prohibiting state support for religion.

Michael McConnell is a fine advocate for his position, but there is obviously another side in the constitutional debate about the interpretation of the religion clauses, and the present Supreme Court justices are in fact closely divided on these issues. McConnell provides only a partial account of that argument and Ahdar does not include an essay that presents the separation position.

Marie A. Failinger, the other essayist to write about the religion clauses of the United States Constitution, also believes that Supreme Court doctrine has been confused. The focus of her analysis is more historical--what the Court has done in the past, and why it has taken the positions it has. To this end she reviews key developments in free exercise and establishment clause arenas, and holds that these arguments are less about constitutional analyses than about power- about whose country is this anyway. "[T]he equality of religious and secular beliefs, undergirded by separationism, is promoted by Americans who want to limit majoritarian
religious influence in the political scene, while religious freedom is the battle cry for those who want to curb the power dominance of secularism or minority religious influence" (p. 91). In my view this chapter does little to either support or refute the themes set out in Ahdar's introduction but it is nonetheless one of the book's more interesting essays.

The three chapters yet to be discussed further add to the book's diversity. In Chapter 6, James T. Richardson, has written an interesting essay but one that is only tangentially related to the others in the book. He argues first that minority religions are treated poorly by the legal system. This is the result of discretion in the admission of evidence, which permits judges to allow the introduction of questionable evidence--for example evidence of so-called brainwashing in cases involving "cults," or evidence about satanic rituals in cases involving charges of child molestation. In the end however, many such rulings are overturned on appeal. The second half of the essay argues that community concern over child molestation coupled with the desire to protect those children who have already been harmed have led to legal procedures that inadequately safeguard the rights of defendants. It is an interesting discussion, but religion has been a factor in only some of these cases.

Reid Mortensen in Chapter 9 tells the story of the failure of the litigation effort to use the law of blasphemous libel to prevent

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the display of Andres Serrano's "Piss Christ" in public galleries in Australia and New Zealand, a law that prosecutors have essentially put to an end. Mortensen does not disagree with this result but urges the galleries to take account the feelings of the community in deciding which are to display. "The ethic of mutual respect must be central to the life of liberal democracy" (p. 190).

The book concludes with Davina Cooper's "'And was Jerusalem Builded Here?' Talmudic Territory and the Modernist Defense." In this essay Cooper tells the story of the conflict between orthodox Jews who sought to build an eruv a London suburb and those who opposed them. Under Talmudic law, which sets out the religious rules for Orthodox Jews, an eruv is a public space that is turned into a private space, a symbolic home, by setting it apart from other space by either the use of existing structures or the stringing of wires across newly constructed poles. The eruv is important to Orthodox Jews because it is permissible to carry and push within its boundaries, activities that are otherwise prohibited on the Sabbath. Since the eruv depends on the appropriation of public space for a religious purpose, it certainly provides an example of the difficulty of relegating religion to the purely private sphere. What is asked for here is what in the American setting would be
characterized as an accommodation.

Cooper, however, is not writing to demonstrate the inseparability of law and religion. Rather, she sees the eruv dispute as an example of the clash between liberalism and traditional religion. The "eruv symbolically condensed for opponents crucial and detested aspects of the momentum gathering, cultural revolution" (p. 216). By her account, then, liberalism is actually intolerant. However, this dispute may have been less a clash between liberalism and traditional religion than evidence of intra-communal conflict. Some of the essay hints at the tension. Cooper, for example, attributes some of the opposition to fears of secular Jews that Orthodox separateness threatens their own assimilation (p. 201). However, in so far as this was true, it has little resonance for the larger question of a liberal-traditional divide which does not involve the sensitivities of minority groups. It is worth pointing out as well Cooper's characterization of Jewish opponents of the eruv as secular. They may have been, but they also may have been serious adherents to conservative or reform synagogues. The point is important because to the extent that opposition was the result of hostility between the sects, hostility generated by being characterized as heretics by some adherents of orthodox Judaism, the eruv dispute has little to say more generally about the clash between liberalism and traditional religion.

In the end, I was not convinced that the themes set out in Ahdar's introduction were fully developed. I would also suggest that one might draw a very different conclusion than his from some of the data provided regarding separation as a means of protecting religious liberty. It seemed to me that while international religious minorities are doing better as a result of their growth, changes in public attitudes, and changes in international norms, their position remains less secure than in a separationist structure of the order supported by Justices Brennan and now Justices Souter, O'Connor, Breyer, and Ginsburg. Under this interpretation, the no establishment clause is read to protect one's standing in the community, and the free exercise clause is read to protect not

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One the other hand, these essays do have much to say about the effects of institutions and political culture on policy-making. The most obvious is that the international protection of religious liberty operates on national structures where established churches are prevalent. A long history of religion-state connection also creates a cultural climate where such structures are more accepted than they are in the United States. Thus, although there are now a number of international instruments that protect religious liberty, the American solution by means of separation of church and state is not really considered as a serious option in many countries. It is also possible to see how Europe's more communitarian and more positive understanding of the concept of liberty affect the structures that are

Some of the essays in this book were enjoyable reading, but the book as a whole does not fit in well as a classroom text. Its scope is so diverse as to be difficult to integrate, limiting its utility for an introductory course. The lack of balance limits it as well. It might be used in more advanced classes, but the essays are appropriate for very different audiences. The book might best be used in an upper-division course on comparative religion and politics. Some of the essays might also be profitably assigned to specialized classes dealing with social aspects of law, others to classes on comparative law.


Copyright 2002 by the author, Caren G. Dubnoff