Suhraiya Jivraj, a lecturer at the University of Kent, examines two aspects of law to explain her views on ‘the law's’ attitude to non-Christian religiosity. The first, larger part concerns decisions involving family law and child welfare; the second, education policy and the shaping of citizenship and social cohesion through schooling.
This book is practical and theoretical. On the one hand it is about instances where ‘courts are called upon to adjudicate and delineate the parameters of a child's religion or future religious/cultural identity and belonging’ (p 2). On the other, through selected cases, Jivraj finds evidence to posit that religion ‘circulates’ in ‘three distinct but also overlapping ways’ in English law – ‘an onto-theological concept based on belief and (ritual) practice as manifestation of that belief’, ‘a racial genetic marker that prioritizes a “racial” or ethnic lineage’, and ‘a cultural identity relating to the child's community context’ (p 8) – and that ‘the law’ prefers the first ideal-type to the second, which it occasionally adopts to the detriment and exclusion of the third, Jivraj's preferred mode of thinking.
In Chapter 1 Jivraj considers the three conceptualisations as drawn from socio-legal scholarship and notes the preference among scholars for the ‘onto-theological’, meaning religion defined as belief in a transcendent or distinctly divine being. In Chapter 2, this notion is pooh-poohed and contrasting ways of viewing the idea of religion from ‘critical perspectives’ are proffered. The author settles on religion as ‘race/ethnicity and/or culture’ (p 43) as the most academically fruitful, on the questionable grounds that ‘the emergence of religion highlights the “inventedness” of religion as a modern concept’, owing to the corrupt and biased ‘influence of Christianity in the world religion scholarship’ (p 52).
In Chapter 3 specific cases are leant on to show (at least initially) the extent to which the judiciary tends towards considering religiosity on strictly theological grounds rather than as a social-cultural construct. For instance, a man called Jonathan Bradley applied to have his adoption order set aside on the grounds that his adoptive parents had mistakenly thought he was a Jew (he was in fact born of a Catholic mother and Kuwaiti Muslim father). Jivraj takes issue with a comment by Simon Brown LJ in the Court of Appeal, when dismissing the set-aside application, that ‘It is difficult to imagine a more ill-starred adoption placement than that of a Kuwaiti Muslim's son with an Orthodox Jewish couple’. Her beef is with the preference of religion seen in strictly theological terms concerning belief and practice over religions as a racial or ethnic ‘inheritance’ (p 69) in the consideration of what constitutes a mistake for the purposes of the adoption order.
Conversely, in Re J, a Turkish Muslim father sought to have his son circumcised against the wishes of the boy's English Christian mother. In rejecting the application at first instance, Wall J considered that, although born a Muslim, the boy would have a secular upbringing in England where his only exposure to Muslims would be through his father, who was not, in any event, a practising Muslim. Jivraj cites this – and lines of other similar cases – to attack the weight that judges place on both theological and socio-cultural interpretations of what would be in the best interests of the child, preferring a different child-centric approach:
Sometimes, but very rarely, the judges are willing to understand the importance of religion in the context of children with mixed identities in a more complex way, that is as relating to what is meaningful to the children themselves. This does not depend necessarily on the cognitive understanding of the child but more on the attachments children might have with people and the environment around them. (p 80)
In Chapter 5 this book moves further to attack religion as invented and contingent, where the author argues weakly that, in English law, ‘non-Christian religion is not only predominantly racialized in many of the judgments, but is viewed through an orientalist imaginary [sic] of conflictual and uncivilised non-Christian behaviours’ (p 101). Too few supporting judgments are cited and quotes are restricted to only a few lines without giving much context, giving rise to the suspicion of selected facts massaged to fit a suspect conclusion.
Chapters 5 and 6 are essentially analyses of successive Government attitudes towards faith schools, which Jivraj considers biased towards Christianity at the expense of non-Christian faiths, particularly Islam, in the name of ‘common values’. Muslim schools, she says, have been labelled ‘a source of concern because of their potential divisiveness and radicalization’ and are thus subject to greater scrutiny and regulation (p 156). This is perhaps unsurprising, given understandable fears of what radicalization brings and the public policy of fostering British identity rooted in the comparatively tolerant and forgiving established religion.
