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BOOK REVIEWS

Religion, Politics and Law in the European Union

Edited by LUCIAN N LEUSTEAN AND JOHN T S MADELEY Routledge, Abingdon, 2013, xv + 223 pp (hardback 95) ISBN: 978-0-415-46627-1. Originally published as a special issue of Religion, State and Society, vol 37, issue 12 (2009) In stark contrast with the situation of the founding European Communities, which were mainly, if not exclusively, a financial enterprise, religion has become an important element within the context of the European Union in the last two decades. Religion, Politics and Law in the European Union is divided into four key themes: namely, religious identity, religious and political leaders, religion and law, and religious lobbies. cite and The first theme comprises five essays. In European integration, la cite as a European religion, Jean-Paul Willaime, interestingly, identifies la value and claims that it should not be understood from an exclusively French viewpoint. In Religion: a solution or a problem for the legitimisation of the EU, Franc ois Foret states that religion reveals the EUs difficulty in dealing with any normative reference. In fact, Foret rightly points out that, at times, religious bodies, rather than being a force for reconciliation, have become unduly nationalistic and this has become an obstacle to the process of European integration. In A European battlefield: does the EU have a soul? Is religion in or out of place in the EU?, Carin Laundrup carries out a fascinating comparison between the Council of Europe and the European Union, two institutions born in the aftermath of the Second World War. The author stresses that the former has been, generally speaking, more successful and there is an almost unanimous recognition of the significance of this institution in the protection of values and human rights, while the European Union, in contrast, has struggled to raise the same level of popularity and support in many social circles. In From hammer and sickle to star and crescent: the question of religion for European identity and a political Europe, Beno t Challand convincingly argues that, in its process of reconstruction, Europe has always needed a rival in order to enhance its sense of common fate. This paper interestingly cite towards the dominant religion reflects on certain biases of secularity and la in various countries. In the fifth and last paper of the identity theme, European enlargement, secularisation and religious re-publicisation in central and Eastern Europe, David Herbert and Max Fras look at the process of enlargement in the last decade and the position of Poland, Hungary and Romania. The evidence
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suggests that religious influence in public life has grown in those three societies between 1989 and 2007. The second theme, Religious and political leaders in the construction of the European Union, is composed of three essays. In Cracks in a fac ade of unity: the French and the Italian Christian Democrats and the launch of the European integration process, 19451957, Linda Risso argues that Christian Democratic parties, traditionally regarded as staunchly Europhile, supported the integration process for very different reasons and to very different degrees. The author undertakes a valuable comparison between the position of the parties in both Italy and France from the end of the Second World War to the launch of the Common Market in 1957. In Alcide De Gasperi and Antonio Messineo: a spiritual idea of politics and a pragmatic idea of religion?, Giulio Venneri and Paolo O Ferrara examine, from an interdisciplinary perspective, the parallel lives of a religious scholar who inspired a political leader with his intimate religious convictions. Blandine Chelini-Pont, in Papal thought on Europe and the European Union in the twentieth century, focuses on the different views of several popes about European integration. This engaging paper concludes with Pope John Paul IIs views. The late pope defended the view that a common Christian identity pre-existed de facto and was outside any institutional union. Metaphorically speaking, Europe was a spiritual miracle. The third theme, Religion and law in the European Union, comprises two essays. Norman Doe, in Towards a common law on religion in the European Union, wonders whether there is a distinct legal category entitled EU law on religion. His remarkable study proposes that a juridical approach provides a concrete insight into the attitude of the EU towards religion. Doe identifies the following key principles in the approach of the EU to religion: value of religion, co-operation with religion, religious freedom, religious autonomy, religious equality, special protection for religion, and religious privilege. In Voices in the wilderness: the established Church of England and the European Union, Mark Hill examines the historical inheritance of establishment and the anomalous position of the Church of England. This paper also deals with the position of religion within the European Union as viewed by its institutions and by individual faith communities. In this thought-provoking contribution, the author concludes that the Church of England still has to find its voice in the corridors of Brussels. The last theme, concerning religious lobbies, is composed of three contributions. In Religious lobbies in the European Union: from dominant church to faith-based organisation?, Martin Steven analyses the effects of integration on traditionally privileged churches. In The European Union and new religious movements, Sabrina Pastorelli discusses how the European Union and the Council of Europe deal with new religious movements. Her contribution considers the case law of both the European Court of Human Rights and the

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European Court of Justice, while looking at the role of new religions in the transparent dialogue with the European Commission. Solid fieldwork has been conducted to find out what new religious movements are dialogue partners of the Bureau of European Policy Advisors. In the contribution, The logic of structured dialogue between religious associations and the institutions of the European Union, Houston examines the provision for dialogue with religious communities, finally recognised by the Treaty of Lisbon in its Article 17(3). The author questions the logic of this inclusion, the rationale of the role of the European Commission as the body tasked with its co-ordination and its potential role in intercultural understanding, and this reflection leads to the conclusion that there is no justification for a differentiated dialogue provision. This is a well-structured, interdisciplinary, engaging and thought-provoking book, which will be invaluable to those readers with an interest in law, politics, history, theology or sociology. The diversity of the contributions and its cohesive nature make its reading strongly to be recommended.
A OLIVA Q1 JAVIER GARCI

University of Manchester
doi:10.1017/S0956618X13000288

Religion in Legal Thought and Practice

HOWARD LESNICK Cambridge University Press, New York, 2010, xx + 623 pp (paperback 44) ISBN: 978-0-521-13448-4 In a fascinating article in this journal,1 John Witte has described something of the recent explosion in interdisciplinary scholarship dedicated to the study of the religious dimensions of law, the legal dimensions of religion and the (occasionally fissiparous) interaction of the two. Howard Lesnicks weighty reader is a stimulating and thought-provoking contribution to the field, with a distinct emphasis on the relation between religion and moral obligations (including obligations to support or oppose, or to obey or disobey, certain legal requirements) (p xix). Professor Lesnick has skilfully gathered together over 100 highly edited and carefully selected pieces from authors as varied as Augustine and Aquinas to Walter Brueggeman, Richard John Neuhaus, Richard Mouw and Pope John Paul II, not so much to provide answers there are very few in this
1 J Witte, The study of law and religion in the United States: an interim report, (2012) 14 Ecc LJ 327354.

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wide-ranging book but to trigger the readers engagement with the various authors claims, in order to understand religious perspectives at work in the arenas under consideration and to articulate their relevant themes accurately, emphatically and in some depth. My goal is to enable readers with widely varying responses to the call of religion to understand their own responses more fully and to appreciate that they can understand as well the beliefs and practices of others, without having to validate or endorse them. (p xix) By means of contributions from a wide range of legal and religious scholars, the book examines an impressive span of moral issues in public and private life from a religious, but not a devotional, perspective. Five questions are posed that undergird the flow of a sizeable book. Where do moral imperatives come from and how do the answers found in religion and in law affect one another? What is the significance of the religiously grounded character of a moral norm for our thinking about moral obligation and disputed issues of public policy? What are the differences (and similarities) between religious and secular sources of moral norms? How can religions importance to our legal thinking, and its grounding in (differing) claims of revelation, be honoured in a manner that also honours our commitments to pluralism and freedom of conscience and our self-concepts as morally and intellectually responsible agents? How can we integrate our religious commitments with our choices in our work lives? The topicality of the questions is surely unmistakable. Professor Lesnick, a former law clerk to US Supreme Court Justice John M Harlan, is a scholar at the University of Pennsylvania Law School and a founder and past president of the Society of American Law Teachers. He links his skilful selection of pieces with comment and questions of his own, aimed perhaps more at the seminar room than private reflection. He means to provoke, to challenge, to stimulate, perhaps even to help his readers see problems where previously there seemed to be an obvious answer. Immensely sympathetic to a religious worldview, convinced that religious tradition has a unique depth and power . . . to illuminate . . . to inspire . . . to fuel the will . . . (p 503), conscious of his own receptivity to Jesus and to Christian teaching (p 551), and drawing on very many obviously Christian sources, Lesnick nevertheless grants no easy ride to orthodox Christianity, nor will he tolerate any platitudes pronounced simplistically in the public square, asserting that while I do not object to the decision of conservative religionists to believe (as I do not) that divine revelation can be formulated in irrevocably and universally true creedal and dogmatic propositions. I do fault their refusal to allow those who do not join them in their beliefs to have what we do believe

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taken seriously, and described with accuracy and respect; we do not all warrant consignment to a common grave, our headstones labelled widely prevalent, sophisticated intellectuals, or cultural relativists. This kind of sneering polarization is a manifestation of the triumphalist spirit that is conservative religions tragic flaw. (p 505) Himself a Jew, Lesnick is honest enough to say bluntly, albeit as respectfully as I can, that I do not believe the central narrative of either Judaism or Christianity the giving of the Torah on Mount Sinai, or the incarnation of divinity in the person of Jesus ever happened, in the usual sense of that word. It is primarily for this reason that I resist thinking of myself as a believer. (p 502) He prefers to say that the biblical stories carry truth rather than that they are true (p 502), but still (somehow) insists that the call to listen for the voice of God, to seek to learn Gods will (p 505) is at the very heart of our humanity. About the latter he is surely right. Core chapters at the heart of the book assemble a fascinating range of scholarship in the debates surrounding economic justice, bioethical questions, abortion, homosexual sex, war, capital punishment, and religion and (dis)obedience to law the gem of Martin Luther King Juniors famous 1963 letter from Birmingham City Jail to his fellow clergy being a sheer delight. The pieces offer often unsettling and always serious engagement with the thorniest of issues. Lesnick abhors simplistic answers and labours throughout to find common ground in debates where so much ultimately devolves into questions about what it means to be human and to live well. But perhaps even more useful and stimulating (certainly to the practising lawyer) are the broader chapters (from sources most of us would probably not readily encounter) grappling with moral obligation, moral discernment and moral decisionmaking in professional life. Here Lesnicks 50 or more years experience tell, as he himself writes movingly of personal fulfilment in the changing world of law practice and the call to stand with those in trouble (p 13), or of the religious lawyer in a pluralist society, called to function without bleaching out his or her faith (p 393). He concludes the book with a section entitled Religiously grounded moral decision-making in professional life, in which one author (Amelia J Uelmen) refers to the pain of moral lawyering . . . when a lawyers personal moral code conflicts with the clients goals (p 593). She continues: a religious lawyer searches out, highlights and acts on the opportunities to refer to relevant ethical and moral considerations. Moral lawyering

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presupposes that what is at stake is not just the lawyers own highly particular beliefs or a personal need to ease ones conscience, but a broader and more objective vision of the common good. (p 594) Working that out may, at times, be easier said than done. This detailed, carefully nuanced book may make trite answers a little harder to come by, but it is a rich contribution to a contemporary debate that is growing ever more complex. DAVID TURNER Q1
Chancellor of the Diocese of Chester
doi:10.1017/S0956618X1300029X

Hinduism and Law: An Introduction

Edited by TIMOTHY LUBIN, DONALD R DAVIS JR AND JAYANTH K KRISHNAN Cambridge University Press, Cambridge, 2010, xiii + 301 pp (hardback 58) ISBN: 978-0-521-887861; (paperback 20.99) ISBN: 978-0-521-71626-0

The Spirit of Hindu Law

DONALD R DAVIS JR Cambridge University Press, Cambridge, 2010, 208 pp (hardback 53) ISBN: 978-0-521-87704-6 As fillers in the fairly large gap among recent texts that aim to introduce Hindu law to a wider readership, these books merit a cautious welcome. Written largely by contributors based in the United States, Hinduism and Law constitutes something of a challenge to European scholars.2 It demonstrates that Hinduism and law can be studied through multiple lenses and raises issues important in themselves and also for a wider study of comparative law. This desire to make Hindu law relevant to a wider discussion on comparative law is also evident in Davis own The Spirit of Hindu Law. The title of the collective work avoids the more generally used Hindu law. For the editors Hindu law represents a narrower field that concentrates on the study astra textual sources and, presumably, the commentaries of the classical Dharmas and digests that expand on this literature. They claim to look more broadly at Hindu traditions and how they link to and inform the study of law. The Spirit of astra textual Hindu Law, by contrast, has a narrower focus on the Dharmas
2 This challenge is identified by W Menski, Review of Timothy Lubin, Donald R Davis Jr, and Jayanth K Krishnan (eds), Hinduism and Law: an introduction, (August 2012), Bulletin of the School of Oriental and African Studies 28 29.

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genre. The range of sub-topics covered by the contributors in Hinduism and Law reflects the editors claim, as does the grouping of the chapters into three main parts on Hindu law, Law in ancient and medieval Hindu traditions and Law and modern Hinduism. Despite the bold choice of title, the editors acknowledge that the terms Hindu and Hinduism are somewhat problematic and attempt to contextualise their emergence early on. This is not unlike the situation of other writers on India who confront the fact that these imposed terms lack coherence and defy making any real sense to Indians. Yet, as the contributions to Hinduism and Law also reveal, writing by Westerners and their Indian imitators has not challenged to any significant degree this and other current nomenclature for studying Indian phenomena. Nor has the underlying framework giving rise to its existence, or the research questions conditioned by that framework, been much revised. Through work that contextualises Western writing on India, we know that it has largely represented the Western experience of India and not the Indians experiences of their own realities. That Western experience may be seen as framed by the Christian religious culture of the West, which has succeeded in stamping its own questions and answers upon the study of Indian culture to the degree that Indians have themselves adopted those same frameworks without necessarily being able to make sense of them.3 It is unfortunate that the Christian theological underpinnings of the conceptual frameworks thereby established are barely questioned in either book. In fact, Indian legal studies both abroad and especially in India have yet to come to terms with the problem of being trapped in such a Eurocentric framework. Thus the editors introduction in Hinduism and Law follows Davis Spirit with insistent claims: that Hindu law is characterised by its grounding in authoritative texts (p 3), which provide it with a scriptural foundation (p 6) as with the Abrahamic traditions; that there is a Hindu theology (p 6); that Hindu law is a system of religious law, analogous to other traditions such as Jewish, Islamic, or canon law; that Hinduism is a coherent unit of discourse (p 6); that Hinduism (and Buddhism and Jainism) are religions (p 3); and so on. These findings they are more like hyperbolic and empirically untested claims generated by the framework described above demonstrate that the compilers have adopted the Western conceptualisation of Indian traditions as being essentially religious alongside their own religious culture, Christianity, as well as Islam and Judaism. Following S N Balagangadhara,4 I now refer to this as a process of anothering, which is set in train by Christianity and involves depicting another culture as an erring variant of Christianity, and providing it with a foundation through which
3 S Balagangadhara, The Heathen in His Blindness . . .: Asia, the West, and the dynamic of religion (Leiden and New York, 1994); S Balagangadhara and M Keppens, Reconceptualizing the postcolonial project: beyond the strictures and structures of Orientalism, (2009) 11 Interventions 5068; R Gelders and S Balagangadhara, Rethinking orientalism: colonialism and the study of Indian traditions, (2011) 51 History of Religions 101128. Balagangadhara, The Heathen in His Blindness.

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its falsity is inscribed. The books under review follow this path, or at least give no indication that it is a problem to the fairly large gathering of Indologists, historians of colonialism and, indeed, researchers of contemporary Indian law. The kinds of smuggled-in (often now secularised) Christian theological concepts and philosophical assumptions referred to above are not isolated instances but permeate various contributions. We thus read of divine will (the editors, Hinduism, p 11); Brahmanical theologians and Brahmanical religiosity and soteriology (Olivelle, ibid, pp 31 and 32); that Hinduism had its roots in astra (Williams, ibid, pp 112 and 118); and that the Dharmas astra proDharmas vided codes governing human conduct (ibid, p 123), that the Vedas provide commands (ibid, p 130) and that texts found human practices (all McCrea). The predominant assumption in both books that pre-colonial Hindu law was based on a system of textual, codified laws upon which are founded human practices entails considerable ambiguity in at least three senses: first, the position of Brahmins, who are said to have some kind of dominant position in the Hindu hierarchy and are presumably able to dictate to the rest of society what the rules are; secondly, the position of rulers who should presumably enforce those rules; and thirdyly, the role of the rest of the social set-up. Neither the contributors to Hinduism and Law nor Davis in The Spirit of Hindu Law are able to endorse the stand taken by Menski,5 who resists the temptation to read the Indian legal material from a positivist legal or religious standpoint, and recognises the predominance of custom and individual decision-making in socio-legal reality. In The Spirit Davis does mention his intellectual disagreements (p ix) with Menski but does not say on which points. This is not to say that some of the authors do not attempt to grapple with the question of the statesociety relationship as depicted in the pre-colonial Hindu legal and other texts. Thus Michaels provides a brief description of the variations in practices of law in some of Indias regional systems, including the Marathas, Kerala and Tamil Nadu, showing a great variety of such practices in kingly courts and other, customary fora. astra writing the conclusion that: Lubin distils from Dharmas astra is intended to define the generIn spite of the fact that the Dharmas ally applicable rules of correct practice, one of those general rules directly confers authority on the standards of practice recognized as applying within particular social groups and organizations. (Hinduism, p 140) Such a finding evidently leaves many a scholar in a quandary about how to assess textual sources that defer to the prevalent local practices. One can see this struggle
5 W Menski, Hindu law: beyond tradition and modernity (New Delhi, 2003).

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with Davis in The Spirit too, where he devotes a whole chapter to acara (broadly, customary practice) but then seeks to find the source of custom in norms accepted and imposed by the leaders of various social institutions (p 146). This slippage, indicated by the desire to locate custom in some rule-giving structure or authority, betrays the attitude that, if it is not the Brahmins, there must be some other sort of top-down rule-emanating authority. astra would Yelle poses a brilliant challenge, not only stating that the Dharmas once have been an oral tradition of maxims or proverbs that circulated and changed, much like early Jewish law, but also noting the close association between the poetic form of many ancient laws and their function in an oral culture (Hinduism, p 191). As such, although prescribed in written texts, he says that the formulas regarding ordeals were meant to be spoken to impress an audience consisting of both the literate and the illiterate alike. This performative astra underlines a view of Hindu laws textual dimension of the Dharmas sources as constituting not a command structure but a set of legal heuristics. McCrea concedes, What one gets from these texts comes to sound less and less like an unshakably authoritative and oracular voice of truth and more and more like an interminable, and ultimately irresolvable, argument (Hinduism, p 136). The position of rulers is also ambiguous. The development of their role and their deployment of punishment measures (danda) are dealt with less clearly than by Menski6 but important observations are made here and there. Cox struggles beautifully to explain the portrayal of the ideal ruler in a astra commentary on the one hand, and in the poetic (kavya) tradition Dharmas on the other. He makes important observations about the rulers paramount duty of legal adjudication or supervision of legal transactions (vyavaharadar sana). Davis in both books acknowledges that punishment is imposed not just citta). On the general lawby rulers and often takes the form of ordeals ( prayas making power of kings, Lubin says: There seems to be hardly any example of a king publishing a generally applicable law on his own authority, let alone promulgating an entire code. Rather, it seems to have been assumed that his general role was executive and judicial: to hear and adjudicate civil suits, to judge criminals, and to assign punishments for the guilty. (Hinduism, p 151) While adjudication occurs in many locations, and not just as made by kings or their delegates, the Austinian model was not in use among pre-colonial Indians. Several chapters in Hinduism and Law (Sturman, Williams, Rocher) provide some detail on the mismanagement of Hindu law by the British rulers. We
6 Menski, Hindu Law.

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have almost no details on the Muslim, Portuguese and French practice, although Olivelle suggests that more work needs to be done on the increased production of Hindu law digests as a result of the Muslim influence. Some well-known issues are reintroduced: the initial acceptance of the British rulers that some local legal practices would have to be acknowledged; the turning to pundits to discover what the Hindu law was; the choice to codify aspects of Hindu law; the allure of custom, which, ultimately, was also codified or written down in texts and recognised in the case law, all at the expense of knowing about ongoing practices. Scholars of legal pluralism will appreciate Sturmans observation that The colonial form of legal pluralism involved an abridgement of earlier forms of legal pluralism that had previously prevailed both in Europe and in the now colonized regions, and their replacement by a state-centered legal order (Hinduism, p 91). As she notes, even the proponent of customary law, Henry Maine, eventually called for codification of Indian law upon the best European models (ibid, p 95). All this was part of an overall enterprise that Rocher describes as retrieving the essence of a once glorious civilisation from its foundational texts. Far from rejecting wholesale the indigenous tradition, as Jakob De Roover has recently shown, the liberal toleration of the colonial state was driving to purify that tradition of its pagan elements.7 In a recent interview, Bharat Gupt is stated to have expressed disappointment that modern education has made us think that shastras written in Sanskrit are forms of backwardness and for pundits only and several generations have been raised to look down upon the classical texts, particularly the Shastras or Smritis.8 He was speaking of the science of performing arts genres, the astra, but what he said could well apply to the contemporary view of Natyas astra conceived of not as a set of texts but broadly as the Indian science Dharmas of law. The books under review may provide some indications for fruitful endeavours in rediscovering that science, but they fail to provide a broader framework for making it relevant to twenty-first-century Indians. This is despite the coverage of contemporary developments in some chapters that remain focused on a group of questions seemingly interesting for Western researchers. Perhaps their questions are ultimately too far removed from being able to address Indian realities and one may wonder then what the effort was for. PRAKASH SHAH Q1
GLOCUL: Centre for Culture and Law Queen Mary, University of London
doi:10.1017/S0956618X13000306

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J Roover, Secular law and the realm of false religion, in W Sullivan, R Yelle and M Tausig-Rubbo (eds), After Secular Law (Stanford, CA, 2011). The Hindu, 31 August 2012.

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Legal Flexibility and the Mission of the Church: Dispensation and Economy in Ecclesiastical Law
WILL ADAM Ashgate, Farnham, 2011, xix + 243 pp (hardback 55) ISBN: 978-1-4094-2055-2; (ebook 55) ISBN: 978-1-4094-2056-9 Dr Adams excellent book provokes much thought. It begins with a brief chapter entitled, Introduction and definition of terms and then proceeds to consider The development of dispensation and economy in the early Church and The development of dispensation in the West. Having discussed Dispensation in the contemporary Roman Catholic Church and Legal flexibility in English Law, Dr Adam then turns to a general chapter on Dispensation in the Church of England. Thereafter, he tests legal flexibility in three separate chapters: The ritual controversy in the nineteenth-century Church of England, The proposed revision of the Book of Common Prayer 19278 and The use of economy in AnglicanOrthodox relations. The last of these chapters leads on to Ecumenism and economy: legal flexibility and inter-church relations, before Dispensation, economy and legal theory. In his conclusion, he argues that the concept of [dispensation] has been shown to exist in a number of guises (p 205), although the extent of its use should not be over-estimated (p 206). No-one is likely to disagree with the latter summary but the extent of any dispensation still remains open to debate. Dr Adam defines dispensation as a legal process by which an individual is dispensed from the duty of complying with a particular law (p 2). Putting aside the question whether a satisfactory definition can include the matter to be defined within that definition itself, this definition/description is fortunately clarified later, when Dr Adam states: The character of a dispensation is that it requires a situation where, but for the dispensation, the act or omission concerned would not be legal but where, with the dispensation, it would be legal (p 72). And here lies the rub. Who is to decide whether the perceived dispensation is, indeed, legal and whether therefore, in law, it has attained its object? Dr Adam concedes that the concepts of legal flexibility, dispensation and economy . . . sit uncomfortably with the legal positivism that has been the prevalent theoretical strand in English jurisprudence (p 6, expanded in the final chapter). Nonetheless, at least in the foreseeable future, it will be those judges and lawyers trained within that positivism who will ultimately decide whether the dispensation has attained its object or whether the act or omission remains contrary to the law. The question of definition remains important. When considering the bishops actions in permitting, but regulating, the use of the 1928 [Prayer] book, Dr Adam argues that their actions were a clear example of a provisional or temporary setting aside of the law but then (rightly in this reviewers view)

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concludes that they were not . . . exercising a power of dispensation as understood in the western canonical tradition or in English law (p 130). He may indeed be right that this attempt was what in eastern canonical tradition would be regarded as oikonomia (economy), that is, the allowing of a breach in the law for a greater purpose namely the salvation of souls (p 130), but that could not have made the bishops actions legal;9 it is, of course, unlikely that they could call upon either the doctrine of necessity or any vestigial jus liturgicum. As to the salvation of souls, it is worth recalling that Stephen Neill concluded in relation to the 1928 Prayer Book that [t]he most embarrassing thing of all is that Parliament seems to have judged more correctly than the Church.10 If so, where was there any true foundation for economy? One surprising statement by Dr Adam is that [a] major and widespread example of dispensation as practised in the Church of England is in the area of the alteration of church buildings (p 86), although he on the next page he goes on to qualify this view somewhat. A faculty is no more than a permission to do an act that would otherwise be unlawful but, as the granting of such a permission is authorised by the law itself, it cannot amount to a dispensation within the definition/description put forward by the author. Dr Adam also seems to regard the delegation by chancellors to incumbents of an authority to permit memorials in churchyards as an example of dispensation (p 89) but this, in fact, is no more than a delegation of an existing power to grant permission. The authority nonetheless remains with the chancellor. As it is mere delegation and not a dispensation there cannot be any weakening of the Rule of Law as Dr Adam suggests (p 89) if Churchyard Rules differ from one diocese to another.11 To this reviewer the most interesting arguments put forward by Dr Adam are those in relation to recognition of orders conferred by other Churches and the Porvoo Agreement. He concludes that The legal basis for this recognition lies in the authority of General Synod and of the archbishops . . . However, it should be noted that there is a

10 11

I do not know whether the Ecclesiastical Judges Association still has in its possession a paper entitled Aumbries: memorandum by the Chancellor of Newcastle, which refers to a case where in reliance upon the above national policy the Bishop of Newcastle purported to license an aumbry where a faculty had already been refused by the consistory court. When parishioners applied to the court for the removal of the aumbry the Chancellor made no order, on the grounds that it was a matter for the bishop and not the court. In the Memorandum the Chancellor defended his position on the grounds that he might otherwise condemn the actions of his own bishop in the latters absence. He nonetheless added that he would have to deal with the legality of any reservation of the Holy Sacrament if any future application were to be made for a faculty for an aumbry. S Neill, Anglicanism (Harmondsworth, 1960), pp 397398. In this regard it may be worth noting that the authority to permit memorials in the shape of a cross or heart is not delegated to incumbents in the Diocese of Oxford because such memorials have in the past proved to be unsafe. Nonetheless, after due enquiry and advice from the Diocesan Advisory Committee, they may be, and are, permitted by the current chancellor by faculty.

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question as to whether the power of the archbishops to declare a Church in communion is sufficient power to override the statutory requirements of the Act of Uniformity and whether an Act of Synod is sufficiently authoritative to do the same. (p 168) As yet this question has not been tested in the courts. In summary, this fascinating book is warmly recommended and deserves to be read by historians and lawyers alike. For those interested in the early history of dispensations further information can be found in J Churchill, Canterbury Administration (London, 1933) and D Chambers, Faculty Office Registers 15341549 (Oxford, 1966). RUPERT BURSELL Q1
Chancellor of the Dioceses of Durham and Oxford
doi:10.1017/S0956618X13000318

Islam, Europe and Emerging Legal Issues

Edited by W COLE DURHAM JR, RIK TORFS, DAVID M KIRKHAM AND CHRISTINE SCOTT Ashgate, Farnham 2011, 354 pp (hardback 60) ISBN: 978-1-4094-3444-3 There can be little doubt that the enhanced visibility of Islam throughout Europe has resulted in an emergence of legal issues, grounded in religion, with which individual national courts have had to grapple. Many of these cases, because of the way in which they have been decided, have culminated in hearings before the European Court of Human Rights (ECtHR), a Court that, it is asserted in this book, has emerged as the most effective transnational human rights institution on earth (p 2). That may well be right but the theme apparent from the critical studies collected here is that the jurisprudence of the ECtHR illustrates that the record of the Court, when it comes to balancing principles of Islam with the traditional values of Europe, is not an unblemished one. This notion of balancing is tackled in the opening chapter, where the author examines whether or not the ECtHR, when dealing with cases related to principles `-vis similar cases conof Islam, has followed the usual doctrine of stare decisis vis-a cerning different religions, or whether it has differed in its approach, simply because the religion that is at the heart of the case is Islam. Having reviewed the relevant ECtHR jurisprudence, the author concludes that in some instances (such as when dealing with the autonomy of Muslim religious communities, or religious instruction in public schools) the Court has applied to Islam the same principles that it has applied to other religions (p 59). The author identifies, however, two provisos: one being described as Islam in Turkey (p 60), the

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other as the clear endorsement granted by the ECtHR in the last years to the prosecular policies in France aimed at reducing the visibility of Islam in public spaces that are considered neutral or secular (p 61). As regards the former proviso, reference is made to cases such as Kalac v Turkey,12 where the applicant, who held judicial office within the Turkish army, was ordered to take compulsory retirement, the alleged aim being the preservation of respect for the constitutional principle of secularism among army officers. The Court dismissed the case, noting that pursuing a military career was a voluntary option for the applicant and that he should have been aware that he would be subjected to a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the armed forces limitations incapable of being imposed on civilians.13 The French proviso needs little elaboration as the publicity and debate surrounding the controversial 2004 legislation prohibiting, inter alia, the wearing of conspicuous religious dress in public schools continues to rage. The author considers the attitude of the Court in this regard to be dangerous (p 61) and with just cause. Cases such as Dogru and Kervanci14 demonstrate that the ECtHR is quite prepared to support European countries that introduce suppressive legislation under the guise of simply promoting neutral environments in public arenas. It is convenient for such legislative agendas, as the author rightly observes, to synonymise secular democracies with this idea of neutrality. In truth, of course, they do not go hand in hand, as neutral public environments cater primarily for those who have no religious belief; those who wish to manifest their religion through dress become alienated. Perhaps understandably, the debate surrounding the wearing of the hijab (or Muslim headscarf) features heavily throughout the various chapters that comprise this work. The author of Chapter 2 is highly critical of the aforementioned French legislation, observing that, while it does not explicitly single out certain religious traditions as favoured or disfavoured, it does explicitly single out those who are wearing religious garb with a certain more visible degree of ostentation (p 73). In other words, Christians may continue to wear a discreet cross around their neck, whereas Muslim girls may not wear the hijab and Jewish boys may not wear the kippa. The law is, unquestionably, discriminatory both in its application and its effect. It is refreshing to see, in Chapter 3, a contribution from a female Muslim scholar who gives a careful, yet emotive, analysis of the hijab situation as faced by Muslim women today. Part II of the book, comprising Chapters 5 to 9, is dedicated entirely to the Islamic headscarf controversy. Chapter 5 provides, among other things, a

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Kalac v Turkey (App No 20704/02) 23 June 1997, ECtHR. Ibid, at para 28. Dogru v France (App No 27058/05) and Kervanci v France (App No 31645/04), 4 December 2008, ECtHR.

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brief but insightful comparative analysis of the legal position across the European countries, noting that in the Sahin15 case the ECtHR concluded, unconvincingly, that there is no European consensus on the matter (p 95) despite acknowledging that state prohibition against the hijab is quite clearly the exception and not the rule. The authors words are provocative at times, particularly when he suggests that if Turkish students were to launch a political campaign against the ban on headscarves . . . one might assume that the Court would be somewhat troubled by its conclusions and reasoning in Sahin (p 102). There is considerable overlap in this part (and sometimes repetition) by the respective contributors, particularly in relation to the case of Sahin. Chapters 8 and 9, however, provide an interesting insight into the legislative framework present in Norway and Germany, the latter providing some particularly thought-provoking commentary. Turning away from the issue of the hijab, the final section (Chapters 10 to 13) looks at the European Court and the limits of pluralism, where much attention is paid to the ECtHR decision in Refah16 concerning the dissolution of the Refah Party in Turkey, described by one of the contributors as deeply flawed (p 209). Further, the way in which the ECtHR has construed Islam, and the principles upon which the religion is based, is vigorously attacked. In one instance it is suggested that the ECtHR might be disposed to think of Islam in stereotypical and prejudicial terms (p 229); in another it is claimed that the Court needlessly relied upon pejorative generalisations about a major religion (p 271). The final chapter considers how the much-criticised decision of the ECtHR in Refah may have implications for the rights of religious associations to acquire legal entity status. This chapter is a probing one and, in conformity with most of the other contributions to the work as a whole, is highly critical of the ECtHRs inability properly to apply the principles of the European Convention in the context of Islam. There can be no doubt that this book should attract the interest not only of legal and religious specialists but also of the lay community. It is thoughtprovoking, insightful and justifiably critical of the approach that the ECtHR has taken when dealing with Islamic cases. With that in mind, perhaps the judiciary of the most effective transnational human rights institution on earth (p 2) should be added to the list of intended readers. CHRISTOPHER GROUT Q1
Barrister, Acting Registrar of the Qatar International Court
doi:10.1017/S0956618X1300032X

15 16

Sahin v Turkey (App No 44774/98), 10 November 2005, ECtHR. Refah Partisi (The Welfare Party) and Others v Turkey (App Nos 41340(42(43)/98)), 13 February 2003, ECtHR.

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The Established Church: Past, Present and Future

Edited by MARK CHAPMAN, JUDITH MALTBY AND WILLIAM WHITE T&T Clark International, London, 2011, xi + 200pp (paperback 14.99) ISBN: 978-0-567-35809-7 The Established Church comes at an appropriate time in the national debate on the relationship between the Church and the state. With a change of incumbency at Lambeth Palace, thoughts turn to how the new Archbishop will lead the Anglican Communion forward through one of the most divisive periods in its history. The topical political issue of same-sex marriage, in particular, goes straight to the heart of where the boundaries between Church, state and our national culture lie. Although the book is divided into a collection of essays, each addressing a different aspect of the relationship between Church and state, there are themes that run through all of them, giving what could be a rather disjointed collection a thematically consistent feel. One of the key issues addressed is whether the Church of England should be an evangelical or an institutional church, and the first chapter, by Nigel Biggar, explores the limitations of establishment for the Church of England by balancing the Churchs duty to the entire community against a call to express views that will run contrary to the those of many of its constituency. Matthew Grimley discusses how minority faith groups broadly favour establishment as a way of recognising the spiritual factor in public life; but at what cost to the theology of the Church? A very useful comparison is drawn between the establishment of the Church of England and the Church of Scotland, in terms of each ones independence to appoint clergy and adopt liturgy. This is increasingly relevant in terms of the devolution and localism that have seen the Coalition Government cede decisionmaking powers to local authorities and third-sector organisations; why should this not equally apply to the Church of England? Can an organisation be subject to those not necessarily sharing its values, such as Parliament? The final chapter begins by noting Tony Blairs answer to Richard Younger-Ross in the House of Commons on the question of disestablishment: that the Prime Minister wasnt bothered about that one (p 180). The question of establishment rarely rears its head outside ecclesiastical circles these days, which is all the more surprising given the sustained attack on faith in public life by atheist organisations. Elaine Graham writes on the place of the Church in a liberal democracy and possibly gives an answer as to why. She argues that a liberal democracy is in itself an ideology, and to maintain its aims it must therefore limit its influence to allow for faith groups to participate in civic society in the way in which the established Church has done for some time. Reciprocally, the Church must also recognise its duties to foster that

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civic engagement, which makes establishment an efficient way of advancing liberal democracy. This is a useful contribution to consider, following criticism from the Church of the Big Society. The book is a very accessible one. The reader is easily able to delve in and out as the chapters exist independently of one another. Nor does the reader need an in-depth knowledge of ecclesiastical history, since concepts are clearly introduced. Its topicality also makes it a very useful contribution to our national debate on faith, state, culture and localism, looking beyond the present state of establishment. CHRIS DONNELLY Q1
Barrister
doi:10.1017/S0956618X13000331

Law, Religious Freedoms and Education in Europe

Edited by MYRIAM HUNTER-HENIN Ashgate, Farnham, 2011, xxvi + 383 978-1-4094-2730-8 pp (hardback 67.50) ISBN:

As European countries have become more pluralist and in some senses secular, the regulation of religion in the public sphere has acquired more urgency. These 17 essays by sociologists, political scientists, historians and legal specialists report the growing importance of religious freedom in western European schools and workplaces. At the same time, they demonstrate a developing process, balancing conflicting rights and viewpoints, which will help practitioners and those worried about apparent attacks on Christianity. The background might be best expressed in the quoted view of Professor Martha Nussbaum that responsible citizenship includes appreciating the complexities of the major world religions (p 207), and that therefore each states duty is to provide that education, which somehow has to be reconciled with parents (if not their childrens) right of withdrawal from religious education. The chapter on Spanish state schools, while insisting that denominational teaching cannot fairly be accused of bigotry or exclusivism, asks whether those opting for denominational instruction do not thereby miss out on wider teaching that would prepare them for a tolerant and pluralist society. The book falls into four main parts. First, the tensions and interactions cite , identity and discrimination between the key concepts of integration, la are considered, drawing on France with Jewish schools, and England with Muslim schools. Secondly, there is an examination of the broad range of options between the complex and overall broadly Christian model in England

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and Wales, the highly segregationalist and bipolar Catholic and Protestant c French system and the structure in Northern Ireland, the separationist and la nder neutral secularity of Germany (with its Basic Law spanning 16 different La legislatures) and Spain. In all these, the interplay of religion and education is deeply imbedded in historical and political national contexts, which are then reflected in the judicial or legislative solutions given in different jurisdictions to particular issues regarding religion. In the remaining sections of the book, the convergent effect of the decisions of the European Court of Human Rights (ECtHR) is considered in two vividly disputed areas: teaching content and religious symbols. The realm of education is seen as the main laboratory where the state can test its policies about creating a harmonious society and what place religion might hold within that society. Because schooling is compulsory, religious freedoms in schools have greater sensitivity than, say, in the workplace, but they were little discussed within European institutions until spurred on by the security implications of the terrorist attacks of 11 September 2001 in the USA. Because religious belief defines a persons very being, their sense of who they are and how they relate to the world, the recognition of religious freedom is a basic human right, yet it may often conflict with a national perception, or doctrine, of identity. While all states seek to integrate everyone, regardless of class, sex or religion, some seek to do so by relentless assimilation or even Soviet-style uniformity; while others pursue integration by accommodating difference, with the risks of atomised groups within society or accepting complete segregation with separate rules. These opposing systems are exemplified by France, which permits no intermediate representation between the individual and the state, and Britain, which believes that giving a voice to groups and communities enables a valuable diversity even though such groups may not easily find mutual understanding. France and Britain are, of course, not polar opposites: despite its anti-clerical history, France finds room for belief, while Britain has many secular elements alongside its elements of establishment. In the French saga of the veil, by placing Muslim girls in a situation in which they choose between not wearing the hijab or finding refuge in Catholic schools, it is argued that France has sacrificed its original republican intent of putting education at the heart of integration. Of the 17% of French pupils educated in the private sector, 95% of these are in Catholic schools but, as Catholic schools become increasingly secularised (by parental pressure or lack of Catholic teachers), the apparent division is now between highly prestigious wealthy schools and those in poorer areas, often attended by children from immigrant families. A contrast can also be seen in Church of England schools: those in villages are often closer to being faith schools, while many in the cities, particularly in poorer areas, can rightly be deemed community schools in their openness to other faiths. France

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seems to be gradually overcoming its hostility to religion: although the National Curriculum permits no formal hour for religious education, recent history textbooks have cautiously opened for teachers discretion the examination of religious issues arising from core subjects. US attempts to extend science education into evolution have fallen foul of creationist objections; even teaching evolution as merely scientific theory is held to discriminate it from other science on religious grounds. Were evolution held to be a religion per se, US parents could require their childrens exemption from classes and similarly, by extension, from classes on climate change or birth control. US courts have resisted this, although the changing membership of the US Supreme Court might today have brought a different legal outcome. Related debate has surrounded the concept of intelligent design. To a limited extent these debates have fed into discussions in Europe Emmanuel College, Gateshead, is an example quoted but European constitutions do not resemble the US First Amendment and divisions in European societies are less fiercely contested. While in 1982 the ECtHR ruled Scottish schools wrong to beat children with the tawse against their parents philosophical convictions about punishment, in the Williamson case in 2005 the House of Lords ruled that schools refusal to inflict corporal punishment conflicted with some parents Bible-based right to require this under Article 9, but otherwise declined to enforce that right. Their Lordships noted that, while they should not be drawn into evaluating intensely held beliefs against official doctrines, manifestation would not be protected where it harmed other human rights. The Grand Chambers reversal of the earlier Lautsi v Italy judgment, ruling that a crucifix on a classroom wall as an essentially passive symbol (whereas a Muslim headscarf had been a powerful external symbol, though worn by a person with fundamental rights) did not inevitably infringe the states proper neutrality, raises questions about the definition of neutrality and how tolerance might be better advanced in increasingly pluralist societies. A Bavarian case 15 years earlier had held that crosses over all classroom doors (replacing earlier crucifixes) were not merely a symbol of western culture, whatever the state intended. Rather they could be seen as the primary symbol of Christian faith, and were not avoidable (as school prayers were), thus forcing pupils to study under the cross and so violating the states neutrality. Tobias Locks essay compares the two decisions and also contrasts the rights of pupils with those of teachers as employed. Following a different headscarf case, eight of the German nder passed laws enabling monks and nuns to wear habits in classrooms, La in accordance with Christian and Western educational and cultural values (p 362). Subsequent to Frank Cranmers discussion here of such cases and others where belief has led to action manifesting that belief in ways that have conflicted

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with employers policies (wearing a cross or crucifix, veils and turbans; or refusing to counsel or conduct civil partnerships of same-sex couples), the ECtHR has in January 2013 made finely nuanced rulings. Cranmer and also Russell Sandberg (who blames newspapers hyperbole for spreading confusion about the Equality Act 2010) chart the waters within which these rulings should be explored, while Mark Hill provides similar context in relation to rulings on the wearing of religious bracelets, rings and veils in schools. While many of the essays inevitably overlap, all are thoroughly argued and together provide a wide overview of principles and case studies that may yet influence the courts in a field that is rapidly changing. NICHOLAS COULTON Q1
Dean Emeritus of Newcastle
doi:10.1017/S0956618X13000343