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Religion and religious, a difference

by
07 April 2017

Malcolm Evans looks at legal principles

The Confluence of Law and Religion: Interdisciplinary reflections on the work of Norman Doe

Frank Cranmer, Mark Hill, Celia Kenny, and Russell Sandberg, editors

CUP £69.99

(978-1-107-10543-0)

Church Times Bookshop £62.99

 

IN HIS foreword to this important work, Rowan Williams observes of Norman Doe that “it is quite simply the case that no one in the English-speaking world, perhaps no one globally, has made such a contribu­tion to our understanding of the law of the Church in our lifetime.” This volume explores and celebrates that contribution.

The key theme that emerges is the need to understand canon law as “applied ecclesiology”. Once it is grasped, almost all else flows from this. It means that canon law itself has to be understood from a theo­logical as well as from an organisational and regulatory perspective: it is not (or not only) a body of rules, but is also a reflection of, and upon, theological understanding. Such understanding is itself to be situated in and informed by histor­ical, philosophical, cultural, and sociological insights and perspec­tives.

As the part played by the State in relation to law and regulation of societal governance has developed over time, the question of the relationship between the law of the Church and the law of the land has attained heightened prominence. This work is situated at the “confluence” of these questions.

This is not a book about, or is not only about, church-state relations. Indeed, the premise of the work seems to be that it is far too sim­plistic to consider that “law” belongs to the State while “religion” belongs to the Church. Never­theless, ele­ments of this binary approach are to be found; for example, in the contri­bution by Lady Hale, who supports the view that “Churches do not make any claim to dictate the con­tent of secular law,” and so whether this should be a right of conscien­tious objection “is a matter for secular judgment”. While religious believers may “decline to obey an unjust secular law . . . there may be consequences in secular law of abiding by that religious right.”

A telling riposte comes from Linda Hogan, who observes: “It is increasingly clear that lawyers require to understand more deeply the way religion functions, not only in the lives of others, but also in an understanding of their own culture.”

As Doe has explained, it is indeed important to distinguish “religion law” (laws about religions) from religious law (the law of religions). But this does not mean they exist in separate spheres. On the contrary, they engage with and influence each other, and the purpose of dis­tinguish­ing them is not to compart­mentalise, but to understand better, that relationship. That there is a relationship can hardly be a matter of doubt.

The book is organised into four thematic sections, appropriately tracking the structure of the LLM course in Canon Law which was devised by Norman Doe. These concern conceptual foundations and the historical development of canon law, questions concerning government and ministry (including consideration of the worrying shift towards “quasi legislation”, a trend for some concern, and no doubt influenced by trends in more general legal regulation), issues concerning doctrine, liturgy, and rites, and, finally, the interface between religious law and civil law. That the latter topic should be explored only after the others is itself significant, reflecting as it does the need to understand more fully the nature of religious law before considering its relationship with general law.

Doe’s more recent work has focused on “Christian law”, this being a bold attempt to identify core principles across Christian religious traditions. This is a project that could be replicated within and between other religious traditions, opening up the prospect of an even richer understanding of how religious law engages effectively with law in religiously plural societies.

It would been helpful at some point to have reflections on this from scholars of other religious traditions, to test the prospects for taking Doe’s visionary work even further. But, for now, what we have is quite enough — and a feast it is.

 

Dr Evans is Professor of Public International Law at the University of Bristol.

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