The study of law and religion in the United Kingdom has now moved beyond the embryonic stage. The government's placing of religion high on the political agenda has been underlined by a plethora of legislative changes and an abundance of case law, the analysis of which has engaged, and led to the development of, a distinct academic community. However, and no doubt because of the great ongoing changes in the legal framework, precious little attention has been paid to the question of the ambit and scope of law and religion as an academic discipline. If the study of law and religion is to blossom further in UK Law Schools, questioning what precisely law and religion is and what it is not should be imperative. One means of doing that may be to examine how the discipline is understood in leading anthologies. With this in mind, Gad Barzilai's edited work, simply titled Law and Religion, may prove to be useful not only in terms of its substantive insights but also in terms of developing law and religion as an intellectual discipline in the United Kingdom.
Barzilai's Law and Religion is part of the International Library of Essays in Law and Society series, which is designed to provide a broad overview of important fields of interdisciplinary inquiry by providing access to the best existing scholarship. Although some of the works in the series are edited by British academics (Law in Social Theory, for instance, is edited by Roger Cotterrell), the choice of an American editor has obviously flavoured the content of this anthology. Although the lack of material by British writers should be a matter of regret for the UK law and religion academic community, the anthology should be welcomed as an illustration of the direction of the discipline (in the United States, at least).
At first glance, this weighty book seems to be a collection of journal papers and book chapters on law and religion photocopied from their original sources in a somewhat ad hoc fashion: those who appreciate a consistency of style are likely to be disappointed here. A glance at the contents page shows that, although the works included are generally from US law journals, the age of their original publication differs greatly: for instance, the first chapter comes from the Emory Law Journal in 2005, the second from the Journal of Law and Religion in 1985. Yet, in addition to the individual worth of each of the chapters, the volume as a whole has a collective worth that a cynical flick-through may ignore. The work is divided into three parts. The first, entitled ‘Religions as Sources of Human Rights’, includes chapters contending that human rights and religion are not only historically linked but are also linked metaphorically and theologically. It includes the most well-known piece in the entire anthology – Harold J Berman's seminal account of the Judaeo-Christian foundations of Western law – as well as two chapters focusing specifically on Islamic law.
The second section, entitled ‘Religions as Traditions of Law’, builds upon the first section in a number of different ways: chapters on obligations and social order in Judaism, Confucian and Buddhist legal traditions in China, and Hindu conceptions of law reveal the multifaceted ways in which religions have inspired and interacted with secular law. A highlight is the reproduction of an article by John Bowen exploring how Islamic law in Indonesia is interlinked with state law. A chapter co-written by the editor provides a theoretical understanding of how religious communities interact with modern technologies such as the Internet.
The third and final section, entitled ‘Religions and Human Rights: Conflicts’, would seem much more familiar to law and religion academics in the United Kingdom. Issues such as circumcision and women's rights in Islamic societies are subjected to theoretically rich socio-legal accounts. An article by Austin Sarat and Roger Berkowitz compares two US Supreme Court decisions on the recognition of religious communities to contend that law enables multiculturalism as long as its imagined order is not endangered. The very last chapter, Shashi Tharoor's ‘Are human rights universal?’, underlines the centrality of human rights to the study of law and religion as envisaged by this anthology. Since the dominance of Article 9 of the ECHR in domestic law reveals the same trend, this underscores the value of the entire collection: the chapters are valuable as exercises in comparative law in the widest sense. Although it is regrettable that the substance of the book does not directly discuss law and religion in the United Kingdom, the themes, theories and ideas are of direct application.
Unfortunately, space does not permit a review of all nineteen essays in a manner that does them justice. Indeed, since all of these essays have been published elsewhere, it may be more enlightening to examine in more detail the part of the collection that is unique: Barzilai's erudite introduction. It is a hallmark of the International Library of Essays in Law and Society series that each book has an introductory essay by the editor that outlines the questions, approaches and methods and that provides a distinctive analysis of the scholarship presented. Barzilai's introduction does not disappoint: from it a four-fold elucidation of what the study of law and religion should be may be distilled.
First, the study of law and religion is not merely the study of the constitutional position of religion: Barzilai notes that the current volume ‘differs from studies that have conceived religion in singular constitutional terms’ (xiii). This recognition that to study the interaction of law and religion is to study more than the constitutional position of religion is valuable: in the British context, many of the comparative accounts concerning the regulation of religion in other European states have focused too narrowly upon the letter of constitutional provisions. Second, although law and religion is more than the study of the constitutional position of religion, that remains a key part of the enquiry: by giving attention to what he calls the ‘myth of State–Church Separation’ in the United States, Barzilai's introduction underscores that the constitutional position of religion colours the study of law and religion (xi). This reminder is valuable for British academic lawyers, since the absence of an equivalent written constitution has meant that much of the literature focusing on the question of how the UK state accommodates religious difference has paid relatively little attention to the constitutional status of religion.
Third, the study of law and religion should not see religion as a homogenous entity and should include the study of religious law: Barzilai's introduction reminds us that ‘inquiries into religion and law should be sensitive to the versatilities of religious law and the pluralities of religion’ (xiii). This is surely appropriate: to study the interaction of law and religion merely by reference to laws created by national and international bodies is to omit a significant dimension of that interaction. Moreover, it is vital that law and religion academics do not simply focus on mainstream religions or see religion as an unproblematic unified phenomenon.
Fourth, the study of law and religion should be theoretically and empirically informed: for Barzilai, the ‘capacity to generalize important aspects of law and religion should be subjected to such a theoretical, empirical and methodological sensitivity’ (xiii). Reference to sociological and anthropological studies and theories concerning legal pluralism may enrich ‘black-letter’ legal accounts. Barzilai is surely right to argue for interdisciplinary work not simply for its own sake but in order to question and improve generalisations made on the basis of legal evidence.
There is much to be gained from Barzilai's Law and Religion. In addition to the insights provided by the individual chapters, the collection as a whole has much to offer, especially for those who wish to reflect upon how the study of law and religion can continue to flourish as an academic discipline in the UK. Although perhaps flawed in its choice of materials, this book shows that to study law and religion is to do more than to study specific secular legal changes that affect the extent to which religious difference is accommodated. Barzilai's introduction stresses the importance of the numerous interactions between law and religion, including constitutional and other state laws affecting religion, religious laws, and non-legal dimensions to the interaction that can be understood by the use of insights from elsewhere in the academy. Further reflection is required as to the scope and direction of law and religion as an academic discipline in the United Kingdom. Law and Religion may provide a step in the right direction.
