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2016 | OriginalPaper | Buchkapitel

24. Conclusion: In Pursuit of Pluralism

verfasst von : Russell Sandberg

Erschienen in: Religious Rules, State Law, and Normative Pluralism - A Comparative Overview

Verlag: Springer International Publishing

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Abstract

This concluding chapter returns to the questions posed by Silvio Ferrari in his introductory chapter and his distinction between States that employ individual orientated strategies and those who favour community orientated strategies. Revisiting the arguments of Ayelet Shachar, it is argued that both of these strategies are required. Further, it is not a question of whether or not the State intervenes in religious legal systems but when and how they should do so. The chapter draws upon Shachar’s concept of ‘joint governance’ but rejects her much lauded variant of ‘transformative accommodation’. Instead, it draws upon three of Shachar’s five variants of joint governance to reach sixteen propositions of how States should proceed.

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Vorheriges Kapitel Religion and Law in Twenty-First Century England: Tradition and Diversity

See further Sandberg 2014 p.161; Sandberg 2015a p.1; Taylor 1991 p.26; Heelas and Woodhead 2005.

For a full discussion of the secularisation thesis see Sandberg 2014 and Bruce 2011. For two seemingly opposite views compare Bruce 2002 and Stark 1999.

For example, Article 18 of the Universal Declaration on Human Rights 1948 states that ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’ (emphasis added). The European Court of Human Rights has held that religious organisations are entitled to protection under freedom of religion provisions through the protection afforded to its individual members: X v Denmark [1976] 5 ECHR 157; Metropolitan Church of Bessarabia v Moldova [2002] 35 EHRR 306. See, further, Sandberg 2008a.

A clear example of this is provided in the chapter by Merlin Kiviorg who notes that: ‘It is quite likely that the first reaction of any lawyer in Estonia would be that state law does not allow any application of religious rules meaning there is no legal pluralism, Estonian law applies. A closer look, however, reveals that religious rules are applied de facto, for example, within contractual freedom between parties, in the framework of exemptions from generally applicable laws and autonomy of religious communities.’ Lawyers elsewhere would make similar initial erroneous reactions.

State church systems are those countries characterised by the existence of close links between the State and a particular religious community, which may be styled as a ‘State,’ ‘national,’ ‘established,’ or ‘folk’ church. Examples include England, Denmark, Greece, Finland, Malta, and Bulgaria. By contrast, separation systems include those countries where there is a constitutional barrier forbidding the financial support and establishment of any one religion. Examples of such a separation are France (with the exception of the three eastern départements), the Netherlands and Ireland. Hybrid systems, effectively, are those States whose constitutional provisions concerning religion come in between state church systems and separation systems. Also known as cooperationist systems or sometimes concordatarian systems, these States are characterised by a simple separation of state and church coupled with the recognition of a multitude of common tasks which link state and church activity, which are often recognised in the form of agreements, treaties, and Concordats. Examples include Spain, Italy, Germany, Belgium, Austria, Hungary, Portugal, and the Baltic States.

As Wolfgang Wieshaider points out in his chapter in this volume, ‘Recognition implies certain elements of co-operation between the State and the recognised religious societies’. Louis-Leon Christians and Adriaan Overbeeke in their chapter talk of the State operating as a ‘faciliator’ for religious groups, an idea that has been expressed by the European Court of Human Rights, as shown by the Grand Chamber judgment in Refah Partisi v Turkey (2003) 37 EHRR 1 at para 91 that: ‘The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society’.

She highlights the ‘unavoidable costs’ argument by Kukathas (1992) which she summarises as claiming ‘that although tensions can arise between the goals of accommodating differences and protecting rights, a genuinely tolerant state will rarely intervene in minority group affairs- even if that minority group systemically violates certain of its members citizenship rights’.

She highlights the ‘re-universalized citizenship’ response by Okin (1997) which, according to Shachar, ‘holds that in a conflict between an individual and a minority group, the state should put its weight behind the individual, even if in doing so, the State helps to alienate the individual from her group’.

As Shachar (2001 p.81) puts it: ‘Joint governance promises to foster ongoing interaction between different sources of authority, as a means of improving the situation of traditionally vulnerable insiders without forcing them to adhere to an either/or choice between their culture and their rights’.

See, e.g., Jackson 2009 and Malik 2012 p.36. Compare the wider treatment by some political scientists such as in Eisenberg and Spinner-Haley 2005.

The third assumption, though underlining how joint governance is premised on the notion that it is possible to determine whether the group is a viable social entity, is problematic in its use of the words ‘constantly affecting’ which seems to imply a closeness between systems that does not necessarily exist as shown, e.g., in the empirical findings of Douglas et al. (2011).

The research underscored that the authority which religious tribunal officials enjoy is not purely ‘legal’; rather it seemed to derive from a combination of their position in the court, their standing in the community and their own personality. The majority of those interviewed were also religious leaders and their ‘legal’ functions are just one part of their much larger pastoral role.

This was shown clearly in the phenomenon of ‘forum shopping’ observed in the religious tribunals studied by Douglas et al. 2011. The absence of an appeal hierarchy in the Muslim and Jewish communities means that litigants can, to some extent, choose which tribunal they go to according to the way in which (they think) the law will be applied to them and can then make use of a different religious tribunal if they are not satisfied the first time.

Although there is no consensus as to the exact meanings that are to be attributed to these words (see, e.g., Poulter 1999 p.12), it may be suggested that integration implies a intention to achieve over time a degree of assimilation whereby differences are reduced. In contrast, accommodation assumes no such intention. The end goal of accommodation is simply the making of space for such difference to exist within the majority culture.

‘Transformative accommodation seeks to create institutional conditions where the group recognizes that its own survival depends on revoking certain discriminatory practices in the interests of maintaining autonomy over sub-matters crucial to the group’s distinct nomos’ (2001 p.125).

She reasons that ‘since the state is the most powerful entity, the presumption in the negotiations must be in favor of the group’. This means that ‘generosity at the negotiation stage is required from the state as the stronger party’ (2001 p129, 130).

The mention of ‘religious freedom’, of course, raises the vexed question of the definition of religion. Martin Ramstedt’s chapter in this volume rightly raised the issue of how to draw the boundaries between different normalities. The terms ‘religion’, ‘law’, ‘religious law’, ‘religious rules’ are all contested. Elsewhere I have suggested that the systems theory of Niklas Luhmann may be of help here in defining law (see Sandberg 2015b and 2016). For current purposes the conventional international law definition that freedom of thought, conscience and religion extends to the manifestation of religion or belief and the understanding of belief covers worldviews will be implicitly adopted for convenience. This, however, ignores the fact that cultural groups often have their own nomos, on which see Hussain 2015.

The first variant of joint governance identified by Shachar, federal-style accommodation, occurs ‘where power is allocated between several sub-units and among different branches and levels of government’. It can only occur where there is ‘a territorial division of authority’: Shachar 2001 p.92.

The classic common law approach is that ‘everything is permitted except what is expressly forbidden’: Malonev Metropolitan Police Commissioner [1979] Ch 344. See also: AG v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109,178, Donaldson MR: ‘the starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law … or by statute’.

For a draft Bill implementing this, see Sandberg and Cranmer 2015.

These are examples of conclusive presumptions. The rebuttable presumptions pass the burden of proof meaning that it has to be proved that the victim did consent. These include where violence is used or threatened, where the victim is unlawfully detained, asleep, stupefied or otherwise unconscious, or where the victim is unable to communicate their lack of consent due to a disability.

The historical background in Brazil provides a clear example of how Church-State postures are shaped by the sociological position of religion, as described in the chapter to this volume by Jane Reis Goncalves Pereira.

Germany and Hungary provide clear examples of this see Article 137 para 3 WRV as discussed in the chapter on Germany by Ino Augsberg and Stefan Korioth and the Law on Religious Freedom (Act CCVI/2011) as discussed by Balázs Schanda’s chapter on Hungry.

This stance is not limited to European jurisdictions. See, for instance, the approach of the Colombian legal system where, according to Vincete Preito’s chapter in this volume, ‘great sensitivity’ is afforded towards the manifestations and consequences of freedom of religions with the State now declaring itself incompetent in religious matters.

For an example of an explicit recognition of limits see the discussion of the Societies Act and other legislation in Singapore as described in Arif A Jamal’s chapter in this volume.

See, for instance, the Dutch legal system where internal rules of religious organisations are considered to be binding on members in the same way as secular organisations such as football clubs. As Sophie van Bijsterveld states in her chapter in this volume, churches have legal personality and are governed by their own statutes while the secular courts have no role in determining disputes as to a theological nature but church statutes can only operate ‘in so far as they do not conflict with the law’ and the adjudication of conflicts with a civil dimension fall within the competence of secular courts even if they arise within churches. Lord Hope in the UK Supreme Court helpfully summed up this approach in two principles: first, that ‘It has long been understood that it is not the business of the courts to intervene in matters of religion’ and second that ‘It is just as well understood, however, that the divide is crossed when the parties to the dispute have deliberately left the sphere of matters spiritual over which the religious body has exclusive jurisdiction and engaged in matters that are regulated by the civil courts’: R v Governing Body of JFS [2009] UKSC 15 paras 157 and 158.

This will include the questioning of what Javier Martinez-Torron described in his chapter to this volume as ‘rules, institutions and values with a clearly distinguishable religious origin … which having been “secularized” with the passage of time, are applicable or available to all citizens irrespective of their religious affiliation’.

As Balázs Schanda’s chapter to this volume puts it, ‘Church premises do not constitute a lawless territory’.

It should be stressed, however, that legal only solutions will be inadequate as argued convincingly in Michele Graziadei’s chapter in this volume. There is a need for interdisciplinary approaches to law and religion, on which see Sandberg (2014).

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Titel: Conclusion: In Pursuit of Pluralism
verfasst von: Russell Sandberg
Verlag: Springer International Publishing
Buch: Religious Rules, State Law, and Normative Pluralism - A Comparative Overview
Print ISBN: 978-3-319-28333-3

Electronic ISBN: 978-3-319-28335-7

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-3-319-28335-7_24