Monday, April 30, 2007

Religion in Schools: Religious Education and Worship

Summary:

1. Religious Education:

  • ECHR, Art. 2: duty to respect right to religious education.
  • State law: Education Act 1996; School Standards and Framework Act 1998
  • Syllabus must reflect fact that religious traditions of Great Britain is mainly Christian.
  • Syllabus must take into account teaching and practices of other principal religions.
  • Standing Advisory Council on Religious Education (SACRE): is appointed by Local Education Authority (LEA) and is composed of C of E and other representatives.
  • Parental right to access information concerning RE.
  • Parental right to withdraw children and send elsewhere.

2. Religious Worship:

  • There must be a daily act of collective worship in State Schools.
  • Act of worship must be wholly or mainly Christian in nature.
  • SACRE monitors provision of worship; it may even disapply this requirement to a particular student if appropriate.
  • Schemes for worship challengeable in courts for lack of Christian content.
    (R and D (1992 unreported): two mothers complained that religious education was inadequately provided in their sons primary school. Judge refused to consider aspect of case on the basis that the children already moved schools).
  • Each pupil must take part in the daily act of worship but parents may withdraw.

3. Religion and Discipline:

  • School uniform policy vs religious garb.

    Begum v Denbigh HS, Luton [2004] CA:

    B a 15 yr old Muslim girl who sought to wear Muslim shalwar kameeze (long tunic and baggy trousers). School decided that B could not enter the school unless she wore the prescribed school uniform; but she could not agree due to her religious beliefs. School refused her entry.
    She claimed this violated her ECHR Art 9 right to manifest her religion practice and observance. She sought mandatory order to admit damages.

    The case ultimately reaches the HL who conclude that there was no interference with B's Art. 9 right to manifest religion b/c:
    (a) B voluntarily chose that school.
    (b) There was no difficulty for B to attend another school.
    (c) There were other schools in the area were happy with jilbab.
    (d) The school went to "unusual lengths" to make its uniform policy.
    (e) Nicholls dissenting: Was not sure whether there was interference with B's Art. 9 right.
    (g) Hoffmann: schools do not have to have Human Rights textbooks at their elbow.

    And even if there had been interference with B's Art. 9(1) right, it was justifiable under Art. 9.2 b/c:
    (a) It was prescribed by law for the school to have authority to institute a uniform policy.
    (b) It was necessary in a democratic society.
    (c) B was not denied a right to education as there were other schools available.
    (d) The right to education is not a right to attend a particular school.

  • Corporal Punishment + religious conviction.

    R v SSE, ex p Williamson [2005] HL:
    Case involved Christian schools which sought to administer corporal correction on religious grounds.
    HL held this was unlawful. The SSFA 1998 amending EA 1996 s.548) provide that corporal punishment cannot be justified.

    The school argued decision was breach of Art. 9 ECHR or Art. 2(1). Held: Manifesting religious belied by the use of corporal punishment was not in the best interests of the child.

  • Teachers and religious observance.

    Ahmad v Inner London EA [1978]:
    A is a Muslim employed as a primary schoolteacher under a contract which required full-time service. Never mentioned to employer he has to attend prayers in Mosque every Friday then return to work. He refused an offer of employment on a four and half day basis and left his employment subsequently claiming unfair dismissal on the basis that his employer's refusal to allow him to be absent for 45 min every Friday.

    Tribunal dismissed claim. A appealed to CA which also dismissed his claim. He finally appealed to European Commission which again dismissed his appeal claiming it was manifestly ill-founded on the basis that the education authority gave consideration to A's religious freedom by offering part-time post and thus the contract must be fulfilled.

4. Religious Schools (usually voluntary-aided):

  • 22,000 state maintained schools in England; 7,000 have a religious charcter.
  • RE in religious schools may be in accordance with LEA syllabus or tenets religion.
  • Schools designated as religious schools; must satisfy legal criteria.
  • Religious schools may employ religious criteria for admission.



Monday, April 16, 2007

Legal definition of Religion

Meanings of Religion: A First Step:

(a) There is a practical legal relevance for a definition as it is used in a number of Statutes including:

  • Human Rights Act 1998, s.13: 'religious organisations'
  • Data Protection Act 1998, Sched. 4: body or association existing for 'religious purposes'.
  • Law od charities: 'advancement of religion'.

(b) The nature of religion: theism and faith: judicial approaches:

  • Religion is about relations between humans and God.
  • The definition of religion is an objective not a subjective matter
  • Religion involves faith and worship (intellect and action)

Re South Place Ethical Society, Barralet v AG [1980] 3 All ER

"It seems to me that two of the essential attributes of religion are faith and worship; faith in a god and worship of that god."

NOTE: Whilst a theistic element is essential, there appears to e no requirement that the religion has to be monotheistic: a White Paper on charities noted that Hinduism, a religion usually considered to be polytheistic, had charities registered by the Charity Commissioners.

(c) The role of worship:

  • Religion involves reverence to a supreme being.
  • The courts are reluctant to define religion with a high degree of percision.

Ecclesiastical Law:

(1) Religious perspectives:

Ecclesiastical law is law made by a church for itself:

Roman Catholic: 'Ecclesiastical law is distinguished according to its origin either as divine or as human law'; divine law consists of that set of 'norms... laid down by God' for the church and 'human law (purely ecclesiastical law) is either the result of legislation or custom' (Georg May: Roman Catholic).

(2) European perspectives:

Ecclesiastical law is te law of the State applicable to religious organisations (eg Spain: el derecho eclesiastico del estado; Germany: Staatskirchenrecht)

(3) Civil Law Perspectives: English Law:

'The term "ecclesiastical law"... means the law relating to any matter concerning the Church of England administered and enforced in any court'.

'The ecclesiastical law of England... is part of the general law of England - of the common law - in that wider sense which embraces all the ancient and approved customs of England which form Law' (Mackanocie v Lord Penzance (1991) 6 App Cas 424 at 446 per Lord Blackburn)

Problems:

  • Definitions are formulated without refernece to agreed definitional criteria.
  • Definitions which focus on enforcement do not distinguish between 'enforced' and 'enforceable'.
  • Definitins over concentrate on judicial enforcement.
  • In England, if ecclesiastical law is part of the law of the land the decisions of the courts of the Church of England should bind civil courts - but they do not.

Canon Law (Christian Churches: hierarchical and Episcopal (ie with bishops):

(1) narrow definitions:

'Canon law is principally concerned with the practical life of the Church'; 'it springs from the will of Christ, but its minute and detailed rles come from human agents... that is, the pope and the bishops' (ladislas Orsy: Roman Catholic).

(2) Wide definitions:

Canon law is 'so much of the law of England as is concerned with the regulation of affairs of the Church of England'.

(3) The subjects of canon law:

  • Ecclesiastical government (institutions, eg synods)
  • Ministry (rights and duties of ecclesiastical persons, eg bishops, clergy, laity)
  • Doctrine (church teaching) and liturgy (public worship).
  • Rites of the church (baptism, confirmation, eucharis, marriage, confession)
  • Church property and finance (acquisition, administration, disposal).

Jewish Law:

Jewish identity is shaped in part by halakhah (Jewish Law). This 'defines the broad sphere of religious observance and signficantly influences the norms and practices of communal governance, and its study [is[ a spiritual and intellectual experience' (Blindstein).

For Jews, the Torah (or 'the teaching', also 'the law') is the revealed will of God, received by Moses on Mount Sinai. The Talmud is the body of learning about the Torah.
The principal sources of Jewish Law are:

  • Codes
  • Commentaries
  • Responsa (responsum is reply to a religious-legal question)
  • Enactments (ie ordinances)
  • Custom

Islamic Law:

Islam - submission to Allah

Muslim - one who lives according to the will of Allah.

Shari'ah - lieterally: path leading to watering place: islamic Muhammaden law.

Sunnis (90%); Shi'ites (10%).

(1) Sources:

  • Qur'an: sacred book of divine revelation (via Gabriel) to Mohammed (PBuH) (570-632)
  • Sunna: Practice and statements of Mohammad (PBuH) (recorded in hadith, traditions).
  • Ijma: juristic consensus of scholars derived from juristic effort or ijtihad
  • Qiyas: analogical reasoning.

(2) The Schools and Science of Islamic Law:

  • Hanafi - ra'y (opinion) (founded by Hanifa: 700-767)
  • Maliki - dependence on Qur'an and Sunna (Malik: 710-795)
  • Shafi'i - develops understanding of the four sources (Al-Shafi'i: 767-820)
  • Hanbali - the strictest school (Hanbal:780-855)

(3) The Four Sciences of Islamic Law:

  • Prophetic tradition (hadith)
  • Qur'anic exegesis (tafsir)
  • Theology (kalam)
  • Law (fiqh)

(4) Subjects and Scope of Islamic Law:

  • relations with God (ibadat and the five pillars of Islam).
  • relations between humans (mu'amalat)
  • classes of acts: obligatory; desirable; indifferent; unobjectionable; prohibited.

(5) Classifications of Laws:

  • Penal Law
  • The Law of Transactions
  • Family Law
  • The Law of Succession
  • Procedure and Evidence

Sunday, April 15, 2007

Religion and Law: A Sociological Perspective

I. Religion, Socialisation and Individualisation

1. The Definition of Religion:

(a) Sociological definitions:

Sociologist commonly define religion as either substantive and/or functional.

Substantive definition: ideas that religion is a 'belief in spiritual things'. It is activities of the mind. For some definition is a subjective matter solely for the person involved.

Functional definition: religion is seen as a system of beliefs, acts and rituals referring to the sacred which binds people together into social groups; religion is necessary for society to satisfy its needs.

Each approach was subject to criticism and development. In short, religion concerns the sacred and supernatural, beliefs, practices, and morals.

(b) Legal definitions

The State in its law commonly uses the terms 'religion', 'religious organisation', 'religious purposes' and religious 'belief and practice'. However, THERE IS NO SINGLE DEFINITION OF RELIGION IN THE FORMAL (WRITTEN) LAW.

Judicial definitions are less elaborate than those of sociology, yet elements of both substantive and functional approaches surface, but not fully or conciously. Courts (eg) define religion objectovely as concerning 'relations with God': 'the two essential attributes of religion are faith and worship; faith in a god and worship of that god' (Barralet [1980]). Courts also claim to be 'perfectly impartial in matters of religion' (Carroll [1931] 1 KB 317). This may be contrasted with objective-functional tests in (eg) Australian law: religion is 'belief in a supernatural Being' and 'acceptance of canons of conduct... to give effect to that belief' (Church of the New Faith v Commissioner for Payroll Tax (1983)), and subjective-substantive tests in American law: 'whether the beliefs professed... are sincerely held and... are, in his own scheme of things, religious' (US v Seeger (1965)).

2. The Individuality and Sociality of Religion:

(a) Sociology of Religion: Religion as an Individual v Group phenomenon

Some view religion as an autonomous and individualistic human experience, outside the social environment, a matter of solitary feelings and acts in relation to the devine. Others emphasise the social nature of religion as a group phenomenon.

In 1915, Durkheim described religion's real function and said it is ' to awaken within the worshipper a certain state of soul, composed of moral force and confidence. The essential thing is that men are assembled, that sentiments are felt in common and expressed in common acts, but the particular nature of these sentiments and acts s something secondaryand contingent'.

Marx, on the other hand, described religion by saying it is 'the sigh of the oppressed creature, the heart of a heartless world, just as it is the spirit of a spiritless situation. It is the opium of the people'.

For reductionists, as a religious system is a social system, so a religious organisation is 'an affiliation regulator' in which individuals as social entities express themselves in actions regulated by norms. According to the so-called phenomenological approach, religion is seen to:

  1. provide meaning for the individual.
  2. represent a source of social stability
  3. link the individual with the larger social group; and
  4. create order through shared worldviews about reality and humankind.

Religion originates in the individual not society (though society shapes religion), a basic human necessity providing rewards/compensation for the unachievable in this life.

(b) The Law: Religion as the Activities of Individuals and Collectives

Legal evidence is conflicting. On the one hand, the classical approach of the common law tended towards the individualistic nature of religion: the focus of freedom of religious belief and practice was the individual. On the other hand, most parliamentary statutes on religion have historically, dealt with religious collectives or classes, and only rarely with religious practice by the individual.

Today, however, the Human Rights Act 1998 treats free religious belief and practice as exercisd both 'by religious organisation (itself or its members collectively)' (s.13), and by the individual ' either alone or in community with others and in public or private'.

3. Religion, Social Stability and Change:

(a) Sociology

For some, religion maintains social stability and individual well being by:

  1. providing a sense of belonging and of obligations to others
  2. adherence to moral code, reinforcement of the collective conscience,
  3. expression through symbolic rituals, so that
  4. the social order itself may have a sacred quality.

It is not religious doctrines themselves that are important but the social bonds affected byy integration of people into a religious collective, micro-society.

(b) The Law

"The government fully recognises the benefits that derive from the maintenance of religion." Home Office: Administration of Grants.

"any religion is at least likely to be better than none" Neville Estates v Madden [1962] Ch 852

to take a person "outside his own petty cares and lead him to think of others". Holmes v AG (1981) unreported.

Also, the court decisions represent largely untapped sources for the influence of: religious groups on the development of law, unsolicited or solicited - and recent government practices of consultation with churches are noteworthy, and religious ideas in judicial decisions (eg biblical teaching as the basis of the 'neighbour principle' in tort law).

Thursday, April 12, 2007

A new type of Blog...

I am very excited to announce a new blog I am working on in collaboration with one of my good friends. It will be based on the life of a fictional character inspired by a certain person we know in real life. The blog will be launched soon. It will be written in first person perspective; in other words, it will be as if the fictitious person is writing on his online diary. We asked for permission from our friend to use him as our inspiration to creating this fictitious character and he reluctantly agreed but imposed a clause of complete anonymity and so I will commence to tell you his full name ... Just kidding, i can never breach the oral contract we made.

A lot of the stories the fictitious person speaks of will be things that our "anonymous" friend actually experienced and will therefore, we hope, make him more believable and easy to relate to; whilst, still being entertaining and interesting.

Me and my good friend while in the preliminary stages of creating this blog (we are half way there) made a conscious decision to not mention which religion this fictitious character belongs to in order to appeal to a wider audience and not deprive people from experiencing this fascinating character in account to different religious opinions, though "God" will be referred to from time to time in the course of conversations the fictitious character has in order to keep true to the essence of what makes this inspiring friend of ours so interesting and original.

Since it will be written in first person perspective, I will make cameos in some of the stories the fictitious character speaks of. However, real names will not be used and thus it will add to the value of the new blog for people who already know me personally to try and identify which character is actually inspired by me. It was truly interesting to be speaking about myself from someone else's point of view and I tried to be unbiased and describe myself as our anonymous friend would describe me.

I will keep you updated on this new blog and provide a link once it launches. I really hope it will be as enjoyable to read as it was for us to write and hopefully publish. Of course, I will not abandon this blog and it will always be my kind of haven where I could speak freely and unwind without wandering or worrying about how friends or relatives would react to the things I say (even though I know some of them actually are reading it!).