ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 532-534.
LAW AND RELIGION IN CONTEMPORARY SOCIETY: COMMUNITIES, INDIVIDUALISM, AND THE STATE by Peter W. Edge and
Graham Harvey (Editors). Burlington, VT: Ashgate Publishing Co., 2000. 214 pp. Cloth: $79.95. ISBN: 0-7546-1306-2.
Reviewed by Kevin R. den Dulk, Department of Political Science, Grand Valley State University.
In 1998, the British Parliament passed the Human Rights Act, which incorporated into British law the basic rights
and freedoms laid out in the European Convention on Human Rights. A key feature of the Act was a guarantee of expansive
religious rights-a guarantee made especially interesting by the persistence of established churches in Scotland
and England. The authors of LAW AND RELIGION IN CONTEMPORARY SOCIETY, an edited volume with contributions from
across several academic disciplines, use the treatment of religion within the Human Rights Act as a springboard
to a broader exploration of the role of law in defining the relationship between religious communities, religious
individuals, and the state.
Though the various analyses in LAW AND RELIGION IN CONTEMPORARY SOCIETY branch out from Great Britain to include
other nations, most notably the United States, Canada, and New Zealand (with Greece, Australia, and even Afghanistan's
Taliban making very brief appearances), the book is not
conventionally comparative. Unlike Stephen Monsma and Chris Soper's THE CHALLENGE OF PLURALISM (1997), the authors
of LAW AND RELIGION IN CONTEMPORARY SOCIETY do not employ a consistent approach to examine the role of cross-national
variations in shaping the relation of law to religion.
Indeed, the unifying theme of the book, which the editors identify as "the complex matter of the interaction
of [religious] communities, individualism, and the State" (p. 9), is occasionally lost in the chapters' disparate
subjects, perspectives, and approaches. Moreover, the limited range of nations given serious treatment in the book,
nearly all of which have legal systems that owe a great deal to Britain's common law influence, could use a few
additions to help sharpen the comparisons.
Nevertheless, when the authors stay on theme, they successfully articulate many of the challenges that legal institutions
confront when they try to address the beliefs and practices of religious adherents and their communities. In fact,
I read many of the chapters in the book as part of a larger theme focusing on mounting international commitment
to rights discourse as a means of addressing various forms of pluralism. The Human Rights Act itself, though an
unprecedented introduction of new protections into a country without a formal constitution, is nevertheless part
of the larger story of increasing globalization of constitutional law. Spurred by
the growth of an international human rights movement and the development of judicial review in countries across
the world, constitutional rights have become a decisive factor in addressing the contested boundaries between the
state, private communities,
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and individual citizens. The creation of such transnational tribunals as the European Court of Human Rights only
reinforces the importance of rights-claims. LAW AND RELIGION IN CONTEMPORARY SOCIETY fits squarely within scholarly
discussions about these international developments.
The book begins with a useful introduction by editors Peter Edge and Graham Harvey. They not only place the Human
Rights Act (and its parent, the European Convention) within the context of recent trends in international law,
but they also point out the inherent difficulties of applying the Act's guarantees to religious individuals and
communities. The editors suggest that part of the difficulty lies in the myriad definitions of religion, particularly
when the secular state operates with an understanding of religion that religious communities themselves utterly
reject. Though the authors are brief on this latter point, their argument is well-taken and
should be familiar to First Amendment observers in the United States, where fashioning a legal definition of religion
has proved vexing to the Supreme Court.
The introduction leads into a part of the book that the editors title "Context." The "context"
here is perhaps best described as the need for legal protection of religious minorities in a country that, in sociological
terms, is increasingly secular. Anthony Bradney considers the role of the Human Rights Act in changing judicial
attitudes toward religion in Great Britain. For Bradney, such protection will be available only if courts take
seriously the discourse of rights, as epitomized in the Human Rights Act. Yet, for a variety of reasons (e.g. the
Act's subtle privileging of Judeo-Christian values, the lack of guidance from the European Court of Human Rights),
the extent to which British courts will vindicate religious rights-claims is still an open question. Sociologist
David Robertson suggests how the British courts might address this question of religious freedom, laying out several
ways to apply the concept of "neutrality" in a nation that is largely secular sociologically but still
maintains a formal establishment of the Church of England. Although he does not come to a clear conclusion about
the approach British courts should take, Robertson does lay groundwork for a British response to religion that
he contrasts helpfully with the American approach.
The second part of the book shifts focus to the legal status of religious organizations, with special attention
to the Church of England and other Christian denominations in Great Britain. Paul Weller provides a normative case
against the current structure of church-state relations in Great Britain, arguing that the formal establishment
of the Church of England should be reconsidered to accommodate greater participation and inclusion of new ethnic
and religious groups. Peter Cumper describes the resistance of several religious organizations to the Human Rights
Act-resistance so hostile that it helped kill an earlier form of the Act in the House of Lords. The conflict surfaced
when religious hospitals, charities, schools, and other religious organizations began to fear that their activities
would be
restricted under the Act because they exercise "public" functions akin to the government's. The story
is not only about group politics and political compromise, but also an example of conflict between the particularist
norms of religious organizations and a universalistic conception of "secular" human rights. It is, I
think, an intriguing case study of the implications of the global expansion of human rights
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discourse, though Cumper only hints at the connection.
The third part of LAW AND RELIGION IN CONTEMPORARY SOCIETY deals with "communalism and the law," focusing
on the religious freedom of children (by Rex Adhar), the clash of property rights of religious groups with zoning
laws in the U. S. (Shelley Saxer), the display of religious artifacts in museums (Pia Altieri), and religion and
employment practices (Peter Edge). Each of these chapters tackles important and, to varying degrees, timely subjects.
Rex Ahdar's discussion of children's religious freedom illustrates how the chapters tie to a key underlying theme
of the book: To what extent should the state intervene in the relationships between religious communities and religious
individuals? Here the concern is not the relationship between "church and state" per se, but rather the
role of the state in overseeing relationships between "private" religious individuals and groups. Ahdar
examines-and ultimately rejects-recent efforts to devise a right of religious
liberty for children; a child could exercise the right against a parent's imposition of beliefs and practices to
which the child strongly objects. Whatever one thinks of Ahdar's conclusion, the chapter does bring attention to
the role of the state in regulating private religious relationships-an area of law that gets remarkably little
scholarly attention.
The conclusion of the book returns to the theme of human rights in relation to religious individuals and their
communities. Legal scholar Malcolm Evans questions the capacity of human rights discourse to accommodate the beliefs
and practices of religious adherents without demanding profound alterations in religion itself. Evans argues that
human rights advocates often ignore the fact that their rights discourse imposes a certain worldview-what Bradney,
in his essay, went so far as to call a "theology"- that is often anathema to religious convictions. Ironically,
this imposition of a worldview is itself a violation of the "toleration" that human rights
advocates claim to espouse. These arguments will be familiar to many students of religious freedom in the United
States, but Evans positions the debate within the unique circumstances of the British experience.
The major impetus behind LAW AND RELIGION IN CONTEMPORARY SOCIETY, as noted above, is the current shape of and
prospects for religious freedom in Britain. To the extent there are comparisons to other nations (e.g. Saxer's
chapter), the authors do not take a consistent approach. Yet, the book
should still be of interest to scholars of comparative law and judicial politics, including those searching for
case studies of the interaction of law and pluralism or the role of the international human rights movement in
the legal politics within individual nation-states.
REFERENCE:
Monsma, Stephen V. and J. Christopher Soper. 1997. THE CHALLENGE OF PLURALISM: CHURCH AND STATE IN FIVE DEMOCRACIES.
Lanham, MD: Rowman and Littlefield.
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Copyright 2001 by the author, Kevin R. den Dulk.