The social systems theory of the late German theorist Niklas Luhmann has a reputation for being complex, opaque and anti-humanistic. Luhmann himself, in a trip to London shortly before his death, described himself as ‘the devil’. However, his theory has become increasingly influential in the sociology of law, helped by recent English translations of his works (both specifically on law and more generally on social systems as a theory) and by a number of accounts and glosses on his work such as the work of Gunther Teubner and, more recently, that of several UK academics who have applied social systems theory to different areas of law such as child law, the criminal justice system and legal pluralism.Footnote ⁵ My own recent work has tentatively applied Luhmann's work in the field of law and religion, especially but not exclusively in relation to the nature of religious law.

Katayoun Baghai's book falls within this literature. As its title suggests, it seeks to apply a social systems analysis to the area of judicial review and focuses mainly upon the role of the US Supreme Court. Such an account may not seem of obvious relevance to readers of this Journal. However, there are at least two reasons why law and religion academics should pick up the volume. The first is the extended introduction, which places social systems theory within the context of classical and contemporary social theory. This context, familiar to sociologists of law but rarely articulated so clearly and precisely, has previously been missing from accounts which have sought to apply social systems theory to law. The chapter should be compulsory reading for all who are interested in the sociology of law or who are intrigued by the theory.

The second reason is that chapter 4 of Baghai's analysis focuses on ‘Religion and law’. The chapter consists of a detailed overview of the First Amendment jurisprudence, which is worth reading in its own right. Baghai takes time to explore a ‘tangled body of doctrine’ (p 81), providing the type of doctrinal legal analysis which is all too often absent in socio-legal works. Further, his conclusion is startling and highlights the worth of a social systems analysis. He claims that the Supreme Court has failed to treat religion as ‘a societal system with demonstrated expansionist tendencies of its own’ (p 113). This suggests that the social system of law has tried to read religion through its own lens because it has failed to understand religion as itself a social system.

To the best of my knowledge, Baghai is only the second author to engage in a systems theory account of the interaction between law and religion (excluding my own work). The first was Michael King, the renowned systems theorist best known for applying the theory in child law. His edited collection entitled God's Law versus State Law: the construction of an Islamic identity in western Europe not only explored issues concerning Islam and religious pluralism 14 years before Rowan Williams’ lecture on the topic, but also included a chapter by King himself which attempted a social systems analysis of the issue.Footnote ⁶

King's work has proved prophetic. He rightly predicted that law would reconstruct religion ‘essentially as those customs, rites and rituals which in the public domain come to symbolize statements of faith and holiness … as rights of worship and performance of ritual’ and that law's reconstruction of religion would probably see each religion ‘as constituting for law a set of rights’, which would often result in judges ‘seeing it in terms of some external authority’ such as ‘a law, God's law, Islamic law’.Footnote ⁷

Both King and Baghai point to the way in which law reconstructs religion and simplifies religious beliefs into actions which law can understand. Indeed, this point has been made judicially (without reference to systems theory) by Laws LJ in the Court of Appeal decision in McFarlane v Relate.Footnote ⁸ However, Baghai's work goes further, warning that: ‘As long as freedom of religion and prohibition of its establishment are reduced to protection of individual liberties or religious communities, the threats posed by religion itself to the autonomous operations of other societal systems are ignored’ (p 113). This seems to suggest that the misreading of religion by the social system of law has been a means by which the autonomy of law is achieved by downplaying the role and claims of religion as a social system. This suggests that seeing religion as a legal right rather than the source of identity and the creator of rules and obligations necessarily reduces the social role of religion by keeping religion in its place.

Writing in this Journal, John Witte Jr has described how ‘a new interdisciplinary movement has emerged in the United States dedicated to the study of the religious dimensions of law, the legal dimensions of religion and the interaction of legal and religious ideas and institutions, norms and practices’.Footnote ⁹ To date, most law and religion literature on this side of the pond has focused on the important question of understanding religion legally. Baghai's work takes a step forward by showing that social systems theory provides a means by which law and religion see and regard one another as social systems.