Wojciech Sadurski argues that it is an arbitrary and redundant exercise to attempt to distinguish between the religious and the non-religious, since religion is a sub-set of moral choice, adding that ‘all sincere “moral” choices and actions, provided they are harmless, ought to be protected in a liberal state’.Footnote 1 He contends that, if the aim is to preserve neutrality under the law between religious and non-religious beliefs, this can only be effected through the ‘non-recognition of religious classifications as relevant to legally imposed burdens and benefits’.Footnote 2 There is some merit in accepting the view that all convictional views belong on a continuum, rather than a hierarchy in which religious worldviews are accorded special treatment. First, this would seem to be an equitable approach to diversity among religions, while also acknowledging the value of worldviews that, while comprehensive, do not rest on religious premises. Second, in a related point, by avoiding definitions the vexed question of distinguishing between ‘genuine’ and ‘sham’ religion might be sidestepped. In European states, religion is generally not defined constitutionally or in formal legislation but it is left to the courts to decide, contextually, whether the belief system under question has the attributes associated with religion.Footnote 3 As a consequence, according to Norman Doe, ‘the nature of religion is most usually elucidated in case-law, though sometimes also in statements issued by executive bodies or in the course of parliamentary debate’.Footnote 4
There is an important difference, however, between declining to predicate religion definitively and suggesting that it does not possess any distinguishing features. Above all, the ‘nature’ of religion will be defined in relation to the genre in which it is framed, and its function will be envisaged differently by the theologian, the sociologist, the lawyer and the political philosopher. This article aims to do the following: first, to demonstrate that the question of defining religion is a live issue in current legal cases; second, to suggest that, for dialogical clarity, what is required is a trans-disciplinary approach to the phenomena associated with religion; and third, to approach the art of defining from a critical legal studies perspective, employing a post-structural, pragmatist hermeneutic. A number of cases involving the definition of religion will ground the discussion.
SEMANTICS AND THE LAW
It would appear to make very little sense to discuss the concept of religious freedom if the substantive content of the signifier, religion, is not delineated from other areas of comprehensive belief. The danger of establishing a narrow a priori definition of religion, however, is that it is likely to ignore or deny the freedom of groups whose religious beliefs fall outside mainstream religious discourse, especially where such beliefs and practices appear to challenge the moral patterns of the popular majority in pluralist states. Rex Ahdar and Ian Leigh point out that, although parliamentary draftsmen and judges have generally declined to define religion and its related concepts, ‘the meaning of religion is not something that can be avoided’.Footnote 5 This distinction is crucial. It is not the defining predicate which is central to legislation or to judgments; it is the meaning which is ascribed to religion within explicitly acknowledged social, ethical and political fields of operation. What the law grapples with is not confined to the philosophical question of essences (although the pitfall of essentialism is a key issue). For makers and dispensers of law, the task is to evaluate all belief systems as to their aims and material effects within specified areas such as charities law, individual or group claims for immunity from civil law on account of aspects of their belief system, or in the adjudication of claims of discrimination on grounds of religion.
In terms of charity law, religious groups that establish legal personality can thereby gain the right to request state subsidies for their charitable activities, including the construction and preservation of religious buildings, or to gain exemption from existing planning laws.Footnote 6 It is worth noting that ‘provision for religious charity work transcends all three European models of religion–state relations’.Footnote 7 This can be interpreted to underscore the privilege which is accorded to religious (as opposed to non-religious) convictional beliefs, despite the waning of traditional markers of religiosity such as church attendance, and despite the difficulty of distinguishing, definitively, what constitutes religion per se.
In order for religious groups which register as charities to be able to benefit from the legal and fiscal advantages which can accrue to them, five filters are employed by the judiciary for the purpose of admitting or denying legal protection. The Morality Filter is a check against doctrines which run counter to the moral implications inferred from major world religions (which are taken to share fundamental human values). The Advancement Filter seeks to establish whether religious trusts advance religion, where advancement is understood to indicate the wide dissemination and promotion of a religion's central message in ways both pastoral and missionary. The Exclusivity Filter attempts to draw the line between work with a religious purpose and work not exclusively so. The Public Benefit Filter, depending upon the legal context (registration or charity law), sets out to ensure that, where a place is designated for public worship, it is accessible to the general public; and that the religious service tends ‘directly or indirectly towards the instruction or the edification of the public’.Footnote 8 The fifth filter, styled the Definition Filter, is acknowledged to be problematic, and the courts increasingly rely on other filters in view of indeterminate boundaries between religion and other forms of convictional belief.
The first four filtering devices can be considered to delineate a circular hermeneutic which circumscribes the definition of religion. First, on the idea that religious trusts will not be recognised if they are immoral or if they encourage immorality, the key contemporary question is, surely, whose morality? The Morality Filter runs the risk of resting on ethical premises which will substantially resemble the dominant religion within its field of operation. Second, it is a questionable exercise to adjudicate on the advancement of religion in the absence of a definition of what is to be promoted, or whether a message is a religious, as opposed to a social, political or ethical, one. Third, in parish work, the line between the religious and the charitable has proved to be contentious, as Sandberg indicated in his comparison of Farley v Westminster Bank with Re Simson.Footnote 9 Fourth, while it is obvious that a place which purports to be for public religious worship requires steps to be taken to make that possible, it is not clear what is signified by the idea of the public, nor should the line of reasoning go unquestioned as to how a religious building necessarily provides public benefit only if members of the public are admitted. This would appear to reduce the concept of benefit to physical proximity or membership.Footnote 10 It is difficult to disagree with Anthony Bradney's comment that ‘the present law of charity provides yet another illustration of the mixture of bias and muddle which characterises British law's attitude towards religion’.Footnote 11
A number of landmark cases involve individuals who have sought immunity from civil law on account of aspects of their belief system. Sikhs, for example, have been granted exemption from the general requirement with regards to motorcycle protective headgear.Footnote 12 Muslims and Jews are exempt from certain meat-slaughtering laws to enable the preparation of halal and kosher food products.Footnote 13 A number of high-level cases involving the Islamic practice of women veiling has contributed to an acknowledgment of the difficulty of distinguishing between religion and culture in the construction of human identity. Begum is a case in point.Footnote 14 What became clear during the stages of Shabina Begum's case was that her religious sensibility and cultural identity were being formed in response to an overlapping set of norms, as she juggled with the social demands of being a citizen, the uniform policy of her school and her role as a Muslim woman and family member in relation to sharia law. In addition, the judiciary was obliged to grapple with the concept of veiling within a social context in which power is associated with visibility.Footnote 15 Since Begum represented a minority view among her Muslim peers who accepted the uniform policy of Denbigh High School, a simple nexus between religious dress and Islam was disrupted. Finally, the public reception of the case proved to be important in the conceptualisation of religion, since it was widely covered by the media. One Daily Telegraph reporter felt qualified to raise the issue of sincerity, and to make an unambiguous distinction between religion and politics, writing that ‘Every word that this Muslim schoolgirl uttered smacked more of politics than of true religious feeling.’Footnote 16
There is a third area of law which raises the question of the line between religion and other forms of comprehensive belief, which is the adjudication of claims of discrimination on grounds of religion. T Jeremy Gunn distinguishes between two forms which discrimination can take.Footnote 17 The first is perpetuated through disruptions to the religious activity of an individual or group, and may entail the destruction of symbols associated with their beliefs and practices. This type of discrimination is often associated with other categories such as ethnicity or gender, and it commonly involves a majority/minority dynamic. As such, religious discrimination can be interpreted to be a manifestation of the desire to root out what does not contribute to the imagined homogeneity and unity of a state. It can represent action taken in the drive for assimilation, whether perpetrated by individuals or at institutional level. In such cases, religion chiefly represents a marker of difference.
More pertinent, perhaps, is religious discrimination which aims to elevate the position of one religion over others through the construction of the social fabric, in ways which include broadcasting rights, the geography of the landscape, control of the educational agenda, church establishment, relations between church and state, and/or a system of legislative advantages and disadvantages. The most important aspect of this second type of discrimination is that it is capable of constructing an almost seamless narrative of national identity in which the cultural landscape is saturated with symbolic, linguistic or physical markers. The result is to confirm default connections between the idea of religion and one particular church or faith. James Beckford calls this ‘banal discrimination’.Footnote 18 Malcolm Evans, on the question of religious symbols and the structuring of the public life of the state, points out that ‘State recognition of the special status of a religious day or festival … [is] a symbolic statement by the State regarding the status of the religion’.Footnote 19 Evans insists that ‘neutrality and impartiality does not mean that the public space must be emptied of the religious … it means that all forms of religion and belief must be able to secure their place’.Footnote 20
JUDICIAL APPROACHES TO RELIGION
Analyses of cases reveal that judicial approaches to the definition of religion can be categorised methodologically as either subjective-functional or substantive-content.Footnote 21 The questions which arise in the subjective-functional approach include the sincerity with which a claimant holds his or her beliefs, and the function of these beliefs in his or her life. In United States v Seeger, the Court decided that the task of the authorities granting exemption was ‘to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious’.Footnote 22 Two criticisms of this methodology present themselves. The first is the problematic task of establishing marks of sincerity.Footnote 23 The second is that that which is held to be a religion in a claimant's own scheme of things functions as a religion in the claimant's own scheme of things. This tautology raises a central issue in the whole debate, as to how it is possible to distinguish the religious from the non-religious in the absence of an a priori definition of religion.
Applying a substantive-content methodology to the question of religion, the aim is to identify characteristics, in the belief systems under scrutiny, which closely resemble aspects of other belief systems widely regarded as exemplars of religion. As Evans puts it, ‘There is considerable advantage in being able to place one's belief within the bounds of an accepted form of religious belief since this ensures that it will cross the threshold of “seriousness”.’Footnote 24 The circularity of this approach is immediately evident, and seen clearly in the following remarks from the judiciary. The first is from Dillon J, in Barralet v Attorney General, where he stated that religion is ‘concerned with man's relation with God and ethics are concerned with man's relations with man. The two are not the same … the two essential attributes [of religion] … are faith in a god and worship of that god.’Footnote 25 Second, in R v Registrar General, ex parte Segerdal, a case which involved the Church of Scientology, Lord Denning asserted that religious worship means ‘reverence or veneration of God or of a Supreme Being’.Footnote 26 What emerges from these examples is a method of categorising systems of belief by analogy, using prototypical models of religion and a circular reasoning which can be argued to betray a Western, Judaeo-Christian bias. Western linguistic systems are saturated with such assumptions of theism.
Article 9 of the European Convention on Human Rights envisages a broad definition of religion, allowing a wide margin of appreciation to individual states.Footnote 27 Article 9(1) provides for the absolute right to freedom of thought, conscience and religion, and the right to manifest, either alone or in private, religion or belief within the circumscribed areas of worship, teaching, practice and observance. Article 9(2) clarifies the fact that the freedom to manifest religion or belief is subject to the limitations as they are prescribed by law and deemed to be necessary for public safety, the process of democracy, the protection of public order, health or morals, and the protection of the rights of others.Footnote 28
It is important to note that the scope of Article 9 extends to convictional beliefs which do not purport to be religious. In Kokkinakis v Greece, the European Court acknowledged the value of comprehensive belief systems for atheists, agnostics, sceptics and the unconcerned.Footnote 29 Given this breadth, the question arises as to whether it is necessary to make a distinction among the diversity of belief systems in order to delineate religion as a discrete form for the purposes of law.Footnote 30 As pointed out by Ahdar and Leigh, however, the terms of Article 9 distinguish between concepts, so that, for instance, the right under Article 9(2) to manifest religion is not extended to manifesting freedom of thought or conscience. There is, they conclude, ‘a paramount need to define religion in any discussion of the topic religious freedom’.Footnote 31 Quite so.Footnote 32
In practice, it is the substantive-content approach to religion which informs most disputes. As Norman Doe writes, ‘There is little to distinguish between European States in terms of the core elements of their understanding of religion’.Footnote 33 These include the notion of the transcendent as object of veneration; etiological narratives from which the meaning of human life is inferred; and a belief that salvation is bound up with a religious figurehead. Doe goes on to point out, however, that ‘The [European] broad approach to religion has led to the idea that religion may embrace, “theistic, non-theistic or atheistic” beliefs … such as agnosticism, free thinking, pacifism, atheism and rationalism.’Footnote 34 In the face of this lack of precision, it is not surprising to find that ‘the underlying trend in English law – encompassing charity and registration law, human rights law and discrimination law – is that the definition of religion is rarely used as a filtering device’.Footnote 35
A TRANS-DISCIPLINARY APPROACH TO THE MEANING OF RELIGION
The reluctance on the part of the judiciary to define religion too narrowly is evident in the case of Williamson. Footnote 36 With regards to the threshold, or filter, through which to distinguish religion from other forms of comprehensive beliefs, Lord Walker expressed, among other misgivings, that ‘the court is not equipped to weigh the cogency, seriousness and coherence of theological doctrine’.Footnote 37 Indeed, he went on to express the need for a more ‘expansive’ definition of religion, in light of the increasingly multicultural nature of contemporary societies and the impact of the culture of human rights. These remarks might be taken to indicate a growing awareness on the part of the judiciary that the complexity of the relationship between religion and law in pluralist contexts requires an approach which incorporates insights from more than one discipline.
Banaker and Travers use the term interdisciplinary to convey ‘an ambition to understand and integrate aspects of two or several disciplinary perspectives into a single approach’.Footnote 38 This can be thought of as importing the insights from one discipline into another, as, for instance, when ecological science is brought into theology. Trans-disciplinary studies are pitched differently. First, there is no intention to reach a ‘single approach’. The aim is to focus on one particular issue (in this case, the defining of religion), taking up insights which blur the boundaries of several disciplines. Trans-disciplinarity has affinities with hermeneutics, in that it attempts to inquire upon the process of inquiry, not simply upon the object of inquiry. It rests on the assumption that, since academic disciplines are constructs of the human imagination, their associated vocabularies and imposed boundaries will affect the way in which knowledge is conceptualised.
If it as accepted that there are signs of a growing awareness on the part of the judiciary of the complexity of the conjunction of law and religion, it is reasonable to assume that the reasons for this jurisprudential shift include the juridification of religion and the construction and self-awareness of the contemporary legal subject. With regards to the former, Sandberg alludes to three dimensions.Footnote 39 The first is the expansion of the law through new regulations which cover areas previously dealt with by less formal social processes of control. The second is manifest in what Sandberg calls the two pillars of modern religion law: the right to religious freedom through the Human Rights Act of 1998 and the right not be discriminated against on grounds of religion or belief. The move from an ethos of toleration to one of rights has led to an increase in legal cases concerning religion. Sandberg's third dimension concerns the emergence of a contemporary legal subject who is aware of being positioned within a range of competing sources of authority, balancing religious, cultural and legal norms in a pluralist environment: an individual, in other words, who is dynamically involved in the construction, deconstruction and reconstruction of ethics, law and religion.Footnote 40 M-M Kleinhans and RA MacDonald posit the legal subject as not only passively law-abiding, but potentially involved in the process of ‘law invention’, adding that ‘law is the belief of those whose narrative of its prospects succeeds for the narrator’.Footnote 41
The contemporary legal subject, moreover, is increasingly empowered, through the culture of rights, the ideology of multiculturalism and the politics of identity, to articulate, and act upon, their comprehensive beliefs. It is simply not adequate, therefore, to evaluate new or minority religions by analogy with historical or majority examples of church, religion or faith. Nor, with reference to Lord Walker, is it merely a question of importing theological insights into the jurisprudential process. Since theology is generally understood to work out of a position of faith, Lord Walker's remark can be interpreted to indicate that theologians are epistemologically privileged on account of being religious insiders. This is questionable. What is needed is a wider spectrum of disciplinary focus, to include, inter alia, sociology of religion, sociology of law, philosophical hermeneutics and critical legal studies. Above all, a trans-disciplinary approach is necessary because the process of defining religion has political implications, potentially involving the construction of powerful social binaries: insider/outsider; minority/majority; good for the state/dangerous to the cohesion of the state.Footnote 42 Sandberg warns that the ‘[p]rocesses through which religious groups and individuals are recognised as such have legal, social, economic, and political effects’.Footnote 43 He goes on to point out that, although the question of definition is rarely central to the adjudication of legal disputes, when it is raised it has the power to determine religious liberty, in terms of scope and limits.
To clarify: to define religion is to contribute to the construction of the object under discussion. As such, it is a public mode of engagement which aims (whether explicitly or not) to interpret concrete and particular aspects of culture by abstraction. The remainder of this article approaches the defining of religion through the lenses of philosophical hermeneutics and pragmatism.
THE ORDER OF THINGS
Defining, like concept-building, runs the risk of reification.Footnote 44 Both are works of human imagination upon which all ‘knowledge’ is based. To define religion is to place a border around what is experienced as an amalgam of unbounded, fluid and linguistically constructed human projects, so that the historicity and cultural contingency of diverse forms of religiosity are liable to be forgotten. In globalising late modernity, it is less convincing to work from monologicalFootnote 45 assumptions, given changes in the moral landscape which include:
i. Raised awareness of the unsustainability of imperialistic approaches to diversity (a pragmatic change in response to plurality and the waning of the myth of state sovereignty);Footnote 46
ii. The codification of legal norms designed to protect minority groups (legal and policy shifts, influenced by the doctrine of human rights);
iii. A greater acknowledgment that all values and mores reflect historical and social location (epistemological changes).
The third of these represents a seismic shift, the shaking of the foundations of knowledge, brought about by the confluence of a number of academic fields which include poststructuralism, feminist critique and the anti-foundationalism of pragmatists such as Richard Rorty and Robert Brandom. These fields of knowledge are recognised as having contributed to the development of critical legal studies.
Richard Rorty, especially in his ground-breaking work Philosophy and the Mirror of Nature, set out to loosen the connection between words and things.Footnote 47 He rejected representationalism, which conceptualises knowing as the ability to articulate an objective picture of the world, where ‘reality’ is regarded as antecedent to, and independent of, linguistic description. Rorty aimed to dislodge the Cartesian split at the heart of this epistemology (that is, the suggestion that the ‘knower’, as subject, can remain detached from the object under scrutiny). Pragmatists acknowledge the danger of classification, through which human discourse, by grouping things analogously, reduces the actual differences among them, creating categories which discursively shape the symbolic imagination. Rorty's argument resonates with the claim that the classification of convictional beliefs into the religious and the non-religious carries discursive power to construct categories of convictional belief (acceptable/dangerous) and categories of citizen who are deemed to contribute to, or detract from, the imagined unity of the state.
Social progress, according to Rorty, is not the moral journey of humans towards a pre-ordained end-point, but is brought about, piecemeal, through linguistic re-description of existing relationships. New metaphors, entering into popular consciousness, discursively modify social interaction. Linguistic innovation, in other words, has normative force. Rorty gives examples:
Once it would have sounded crazy … to describe a woman manipulating the elements of the Eucharist as a figuration of the relation of the Virgin to her Son. But such descriptions are now acquiring popularity. At most times, it sounds crazy to describe the degradation and extirpation of helpless minorities as a purification of the moral and spiritual life of Europe. But at certain periods and places — under the Inquisition, during the Wars of Religion, under the Nazis – it did not.Footnote 48
Consistent with this constructivist, anti-essentialist, anti-foundationalist epistemology, the quest for the essence of things becomes less important than the aim and function of human dialogue and social interaction. Put otherwise, there is nothing in our understanding of the thing apprehended which can possibly stand outside our relationship with the thing apprehended; nothing which would allow us to claim a correspondence between our way of predicating ‘reality’ and a realm beyond the limitations of social interaction. Human beings are epistemological taxonomists, socialised to encounter all things through imaginative categories. Categories of the imagination, however, will always be circumscribed by the contextual parameters of a particular history and culture. In the epistemological sense, when the necessary connection between words and things is sundered, human vocabulary is re-envisioned as the attempt to signify the constant displacement of things, and to find our own place within that flux.
Based on this understanding of knowledge, defining is not a purely lexical exercise, and two things follow. First, the definitions of complex phenomena should not be confined to a search for essences, abstracting, from the multiple and diverse instances of a thing, those characteristics which are deemed to be prototypical or archetypal. Second, the connection between a definition and its object is revealed as a linguistic, instrumental exercise, and its reception will be tied to specified fields. When it is accepted that a definition need not aim to denote essences; and that definitions are about words, not things, it becomes clear that defining is both an art (in the discursive construction of its object) and a form of politics (as a regulative activity through which the actual flux and complexity of human reality is brought under control). In terms of the definition of religion, the key question then becomes: what is the social effect of a particular definition as it is employed within a specified context? The move, in other words, is from the substance of the definition to its context and function.
It is important to differentiate between what Gunn terms the facets of religion and the concern of this article with the function of religion. Gunn describes three facets: religion as belief, religion as identity and religion as a way of life.Footnote 49 The first, religion as belief, refers to the substantive content of a convictional position and typically includes doctrines, theological categories and the investment of authority in figureheads such as the priesthood. Central to the belief facet are dualisms such as truth/falsity and orthodoxy/heresy. The second facet, religion as identity, applies to the establishment, formation and maintenance of group affiliation. According to Gunn, religion as identity, having overlaps with ethnicity, nationalism, family values and cultural traditions, is commonly found to be the underlying cause of religious discrimination and persecution. The third facet is religion as a way of life. Here religion is expressed actively, through forms of dress regarded as symbolic, dietary requirements or the voluntary segregation of communities into spaces considered to signify sacred/secular boundaries.
Religion, regardless of whether it is analysed as a belief system, as a marker of identity or as a way of life, commonly functions by invoking an authority which is considered to be final (in the epistemological sense) and transcendent (in the ontological sense). It is important to note, at this point, that I am not making a claim about the essence of religion; I am analysing religion from the point of view of social history, where it can be shown that, in the indiscriminate use of religious narratives and the absolute moral authority imputed to religious figureheads, religion commonly functions as a moral end-point, intended to trump other sources of knowledge brought into social, ethical or political debate. I suggest, therefore, that the question of what religion is (the ontological question) should be acknowledged as a jurisprudential red herring. Legal reasoning, in the context of democratic pluralism, should be robust enough to admit into debate both religious and secular premises, judging each on the basis of the social effects which they can be empirically demonstrated to engender.
This would represent a ‘broad authority principle’, aimed at the inclusion of majoritarian and minoritarian voices, historical and contemporary patterns of morality, and both secular and religious insights. Such a broad authority principle, intended as a framework for evaluating the aims and effects (or potential effects) of comprehensive belief systems, would rest on the assumption that one of the chief characteristics of the democratic process and the rule of law is that each proceeds by the giving and receiving of reasons. This is at the heart of a pragmatist ethics and the basis of what Robert Brandom calls the ontological priority of the social, by which he means that there is no epistemic authority which does not ultimately reside in human, linguistic assertions, either accepted or rejected. As Brandom puts it, ‘there is no bird's-eye view above the fray of competing claims from which those that deserve to prevail can be identified, nor from which even necessary and sufficient conditions for such deserts can be formulated’.Footnote 50 The idea behind a broad authority principle, therefore, would be to focus on those frameworks for the evaluation of beliefs and practices which are most likely to allow dialogue to proceed, and to open up the adjudication process to a diversity of premises, expressed in a plurality of vocabularies. The crucial emphasis should be on the ‘ultimate’ authority which is invoked, by either religious or non-religious parties in the debate, in order to expose monological rhetoric, which (intentionally or naively) misrepresents both the inner plurality of belief systems and the complexity of moral issues in contemporary, multicultural contexts.
If this is accepted, then the important issue in the evaluation of claims which rest on comprehensive belief systems will not be to establish kinship with one or other established convictional stance, religious or otherwise. It will be to judge whether the moral, social and political aims and effects of the belief system under question can be justified on grounds which are consonant with standards of democracy, where democracy presupposes pluralism, tolerance and broadmindedness.Footnote 51
Richard Rorty, in a phrase which he lived to revise, called religion a ‘conversation-stopper’. In this millennium, even avowed secularists are coming to terms with the fact that, far from closing the mouths of the thinking classes, religion is back on the agenda, in whatever definitional guise.
