Anthony Bradney's latest book on law and religion makes an important contribution to the debate about law, religion and public policy in the United Kingdom. Like Robert Morris's recent work, Church and State in 21st Century Britain, Bradney moves the debate away from more discursive approaches and into a sceptical, empirical arena, arguing that decisions about the constitutional and legal status of religion in Britain must be logically rigorous, must be based upon liberal political premises and must acknowledge the arguable premise that religion has lost all but marginal significance to the social system (p 27). Bradney's reasoning consistently takes the form: policy x is arguably of value because of reasons a, b and c; reasons a, b and/or c are secular and satisfactory/unsatisfactory; therefore, it follows that the policy is/is not of value. He rejects non-secular arguments, which cannot be persuasive to non-religious citizens, but he does not reject religion or religious organisations. Rather, he attempts to justify their existence and integrity in a diverse, secular, liberal state.
The book consists of seven chapters. The first describes the reality of religious belief and participation in Britain, and the second discusses the liberal premises that underlie his arguments. Both positions are highly contested, a fact he acknowledges. The central four chapters address four intersections between religion and law: religious establishment, blasphemy and religious hatred, family law and education. His conclusion: ‘[I]n contemporary Great Britain, when the law attempts to value religion on its own terms, the law fails.’ However, when religious accommodation makes no judgement about the truth of the religion being accommodated and when the accommodation offers an option for citizens, legal recognition of religious values can be successful, because it increases the number of choices for pursuing human fulfilment (pp 145–46).
The examples Bradney offers for failed policy are religious establishment, the Racial and Religious Hatred Act 2006 and religious education in state schools. More successful are legal accommodations of religious private law, family law and independent faith schools. With respect to establishment, Bradney claims that once the Church of England had acquiesced in the obliteration bombing of Germany during World War II and in the use of nuclear weapons from the late 1940s, it could no longer credibly take the position that it could speak truth to power (p 66–67). Similarly, he points out that while Archbishop George Carey emphasises his regular meetings with John Major in his autobiography and devotes a chapter to the relationship between church and state, Major's autobiography is ‘entirely silent on the matter’, and while Margaret Thatcher was concerned about religion, the only reference to the Church of England in her autobiography was to complain that its bishops were not well trained (p 72). His conclusion: ‘Establishment misspeaks the place of religion in present-day Britain and pretends that the past is the present’ (p 73).
The problem, of course, is that arguments like these necessarily select on the dependent variable. Contrary evidence regarding the ability of the church to speak truth to power (for example, episcopal support for decriminalisation of homosexuality in the 1950s or episcopal opposition to lowering the age of consent for same-sex sexual relations in the 1990s) is ignored, and no benchmarks differentiate the positions. The logic of Bradney's position may be compelling, perhaps, to one (like the present author) who agrees with him, but the case is a hard one to defend empirically.
Bradney is at his strongest in areas that are susceptible to empirical analysis: family law and education. In material that may have been prepared in the wake of Archbishop Williams' lecture at the Royal Courts of Justice, Bradney argues that Muslims should be afforded an opportunity to opt into personal law systems that recognise values unique to the Muslim faith and culture (p 51–52). Indeed, he goes on to say that existing limitations on marital consanguinity (particularly between uncles and nieces who are permitted to marry in Judaism) and especially on affinity should be re-examined based upon objective, logical evidence, as opposed to traditional, Christian norms (p 112). Like his advocacy of a clear, logical debate on the question of polygamy (p 109), this position signals a rare willingness to venture into controversial areas. It is to be hoped that this willingness will not lead to a result-oriented dismissal of his entire approach by those whose opinions and interests favour preservation of the status quo.
This book is of interest to several groups of readers. First, all those lawyers who deal with the interaction between British law and religion, including academics and practitioners, will find the treatment of the subject useful. Second, those who practice or teach in the areas of family law and education will find Bradney's perspectives interesting and informative. Finally, all those who are interested in the normative question of where British policy should be moving in this area, including lawyers, students of public policy and politicians, should be aware of his arguments, which stake out a particular position that must be addressed even by those who disagree with it. This reviewer's single complaint about the book is that its cost will preclude its being as widely disseminated as it should be.
