Vol. 15 No.2 (February 2005), pp.110-113

THE COURTS AND THE COLONIES: THE LITIGATION OF HUTTERITE CHURCH DISPUTES, by Alvin Esau. Vancouver: UBC Press, 2004. 400pp. Cloth $85.00. ISBN: 0-7748-1116-1. Paper $29.95. ISBN: 0-7748-1117-X.

Reviewed by Thomas Heilke, Department of Political Science, The University of Kansas. Email: theilke@ku.edu .

“Here we go again.” So ends the regretful penultimate paragraph of this well-written and carefully researched history of a patent dispute that began on a small Manitoba Hutterite colony and that spread its socio-legal and theological ripples into the entire North American Hutterite community and far beyond. Indeed, while the title of the book is descriptively accurate at one level, it hides the fact that this volume deserves the attention not only of specialists, but also of a diverse audience of informed readers, some of whom may scarcely have heard of the Hutterites or who know little about Canadian or U.S. law. Scholars of comparative law will find insightful comparisons of the radically different Canadian and U.S. American judicial approaches to disputes within religious communities. Scholars of Anabaptist history will find a culturally informed, closely documented, and sorrowful recounting of recent schisms, enmity and even violence inside one branch of the Anabaptist family with unfortunate consequences within and well beyond that single tradition. Theological ethicists will find questions raised about community discipline and liberal individualism, albeit in a vocabulary they do not frequent. Political scientists interested in questions of state sovereignty will find important questions concerning the extent and nature of that sovereignty over religious communities in liberal-democratic nation states. Finally, the story and its attendant analyses are sufficiently well written that this volume will be attractive not merely to specialists, but also to general readers.

With such a smorgasbord of interests, this volume may risk giving a little to everyone, but not much to anyone. Out of a detailed account of an internal squabble gone bad, however, the author manages to develop an analysis that covers considerable jurisprudential ground in a way that begins to inform theologically and political-theoretically while leaving open an inviting space for further work.

Esau’s story, to use a metaphor found elsewhere, is the meat and condiments of a sandwich, with a front and back piece of bread connecting the narrative. On the front side of the tale, the author begins with a brief history of Anabaptist movements that concentrates on the Hutterites, followed by a background history of the Bruderhof, which is a twentieth-century, quasi-Hutterian movement that plays a key role in the schismatic developments of our main story, followed by two brief chapters on the history and conceptual framework of Hutterian litigation prior to the cases examined in the main story. On the back end, the author concludes with reflections on the problem of state and religious community interaction at the [*111] jurisprudential level in the Canadian and U.S. contexts.

The story of the dispute itself could be the plot for a bad made-for-TV movie. Well-meaning competence, ill-intentioned incompetence, good and bad leadership, selfishness, righteous indignation, and detailed legal arguments all in the context of a religious culture deeply foreign to most of us, intermingle into a drama that is part tragedy, part legal theater, and part real-life farce. The Hutterites, as most North American prairie dwellers know, are a people set apart. Living in typically small and frequently prosperous colonies that are scattered throughout the prairie provinces and the northern U.S. plains, Hutterites practice a rigid form of agrarian Christian communism that traces its roots directly to developments among Anabaptists in the first decade of their appearance in southern German-speaking Europe in the 1520s. The author usefully outlines this history, the concomitant links of Hutterites to Mennonites, Amish, and other Anabaptist groups, and current Hutterite doctrines and practices. These include “adult voluntary baptism, the separation of church and state, and the establishment of the church as a community that radically follows Jesus in all areas of life, including non-resistance—the refusal to use violence to protect the state or oneself” (p.3). The history includes recent and more distant unions, schisms, and reunions among Hutterites that play a role in the specific events of the 1980s and 1990s that are at the center of Esau’s tale.

Out of this narrative, Esau draws two parallel threads. First, there are the “internal-external” legal contradictions of two radically different legal systems—the “internal” one of the Hutterites and the “external” one of the nation-state within whose borders the Hutterites seek to practice their unique faith. Second, there are the several failures in this story of Hutterite practice to live up even remotely to stated Hutterite doctrine. Hutterites, as Esau clearly explains, are pacifists who have traditionally accepted that pacifism must include a rejection of every form of violence. Hutterites and other Anabaptists have understood state violence to include the violence implied (and sometimes manifested) in state enforcement of juridical determinations concerning two contesting parties at law. Accordingly, Hutterites (and some other Christian pacifists) have been hesitant to defend themselves against state or private legal claims, and they have especially declined to bring litigation against others. More pointedly yet, Hutterites (and many other Christians, including non-pacifists) certainly reject the possibility of Christians to bring suit against one another in a secular court of law, arguing instead that all disputes must be resolved within the Christian community by a variety of usually carefully articulated means. For Hutterites, all three principles have traditionally been absolutes and, arguably, among the centrally defining doctrines of what it means to be a Hutterite (pp.40ff).

Esau outlines the ways in which the gradual modernization and industrialization of Hutterite life has led to several instances in which the first two principles of rejecting “outside” legal defense against litigation and of even of bringing litigation against “outsiders” have suffered some [*112] infraction (pp. 55ff). While these actions may strain the internal coherence of Hutterite claims about their self-identity, it is clearly the case that when a Hutterite brings a law-suit against another Hutterite, all kinds of boundaries have been crossed to the point that an observer must ask whether such an act any longer allows one to call oneself a Hutterite in any meaningful sense.

How to make sense of these developments in which Hutterites bring suit against “outsiders” and against one another? Such actions pose grave questions, both for Hutterite identity and more broadly for religious freedom in liberal democracies in which the rule of law, embodied in a supreme constitution or in the principle of parliamentary supremacy, is paramount. How will that law be understood and applied over against the law of the religious community? The theoretical core of Esau’s work is the distinction between “inside” and “outside” law. This distinction, it seems to me, works reasonably well for the jurisprudential purposes that Esau has in mind. It would need further articulation for the interests of theologians or political philosophers. The “inside” law of Hutterite communities (and presumably many other religious communities across a broad spectrum) includes doctrines and practices that are fundamentally inconsistent with the liberal-individualist “outside” law of the North American liberal democracies on whose sovereign territory these communities are located and to whose citizen body their members perforce belong. These incongruencies give rise to questions concerning the meaning, characterization, or definition of property, individual rights, sovereignty, religion, and community identity, to name only the most immediate and obvious. While Esau does not state it this way, and all parties to disagreements between Hutterite colonies and the Canadian or U.S. national governments might not either, legal disharmonies between the two entities are the formal expression of deeply-rooted differences between Hutterites and the secular liberal state concerning the basis of human flourishing. In some cases, as Esau reports it, the “outside” magistrates involved in resolving disputes between Hutterites under “outside” law seem to have understood this deeper conflict very well.

Esau’s regretful tone emerges from his frequent observation throughout the narrative concerning the futility and potentially disastrous consequences for religious communities of entangling “inside” and “outside” law. Lawsuits do not necessarily accomplish the intentions of those who initiate them. Moreover, the pretentions of liberal individualism, as Esau warns by means of choice statements from court benches and as other studies have argued, are not always small. To invite the courts of the “outside” liberal-democratic state into the “inside” Hutterite system of community solidarity and discipline is to invite invasive compromises in its doctrines and practices, if not the dissolution of Hutterite identity altogether. This is the case not only because going before an “outside” court is a form of violence and therefore illegitimate under Hutterite “inside” law, but also because these courts may not easily find a boundary between inside and outside law and practice. [*113]

In the final chapter and in episodes throughout the story of the legal disputes, Esau shows how, despite a general willingness among Canadian courts to restrict their competence in matters of religious practice, the absence of a clear boundary is especially notable under the Canadian principle of parliamentary supremacy, which does not provide the formally stated protections for minority religious practices that may contravene liberal democratic principles as does the first amendment of the U.S. constitution in the history of U.S. jurisprudence. Even with such protections in place, the tensions between the “inside” and “outside” systems of law and the societal practices they represent persist. Esau worries that in the Canadian context, “the territory of religious freedom will not expand under the Charter [of Rights and Freedoms] but will instead shrink ever smaller as the public sphere of secular liberalism becomes more comprehensive” (p.322). Group diversity, he fears, is vulnerable to liberal assault under a number of legal concepts (p.333), and he refers to the stated, religiously hostile opinions of certain Canadian magistrates and legal scholars to confirm that fear. If out of legal sight puts out of potentially hostile jurisprudential mind, Hutterite litigiousness has been troubling for long-term Hutterite interests both internally and externally (see esp. pp.295ff). In fairness, however, Esau notes that the “external” society spent considerable “patience and resources” on the litigation under review here, and officials of Canadian law treated Hutterite members of both camps in the dispute “with the utmost patience, respect and dignity” (p.299). And further litigation is about to begin as Esau brings his work to press. That, unfortunately, is where we are going again.

As Esau readily admits, he takes a personal interest in this story and its implications. That personal interest gives especially the intricate legal details of the middle chapters a liveliness that renders them more readable. On the other hand, a reader not already initiated into the ecclesiastical and legal questions of the “inside-outside” debate may, as Esau also concedes, find herself somewhat at sea in the constant back-and-forth of the two analytical frameworks of “inside-outside” legal conflicts on the one hand, and Hutterite identity found in traditional doctrines and practices and broken in their abandonment on the other. The turgid complications of the plot, however, are part of the lesson: once litigation begins, outcomes may be uncertain and unintended consequences pervasive.

What is missing? Not much. One might wish for greater attention to similar problems of “internal-external” in other religious traditions — but the author does give substantive references to such, and his own thoughtful analysis should spur others to do further comparative work. Similarly, one might have hoped for more extensive theological or political-theoretical analysis, but, being aware that he is neither a theologian, ethicist, nor a political theorist, the author points in some useful directions for further reflection by his colleagues in these proximate disciplines. Accordingly, this volume is to be warmly recommended.

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© Copyright 2005 by the author, Thomas Heilke.