This is the complete text of the lecture delivered by the Archbishop of Canterbury at the Royal Courts of Justice on 7 February 2008, under the chairmanship of Lord Phillips of Worth Matravers, the Lord Chief Justice, as the Foundation Lecture in a series of public discussions on ‘Islam in English Law’.1 The lecture seeks to tease out some of the broader issues around the rights of religious groups within a secular state, using sharia as an example and noting the substantial difference between ‘primitivist’ accounts of sharia and those of serious jurists within Islam. The Archbishop discusses the implications of some interpretations of Western secular legal systems, which seek to remove from consideration the actual religious motivations and practices of groups in plural societies. Where the law does not take religious motivation seriously, then it fails to engage with the community in question and opens up real issues of power by the majority over the minority and thus of community cohesion. It examines whether there should be a higher level of attention to religious identity and communal rights in the practice of the law: how to manage the distinction between cultural practices and those arising from genuine religious belief; and what to do about the possibility that a supplementary jurisdiction could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women. Is a monopolistic approach to a legal system a satisfactory basis for a modern pluralistic and democratic state? Might there be room for ‘overlapping jurisdictions’, in which individuals can choose in certain limited areas whether to seek justice under one system or another? If we are to think intelligently about the relations between Islam and British law, we need a fair amount of ‘deconstruction’ of crude oppositions and mythologies, whether of the nature of sharia or of the nature of the Enlightenment. Following the text of the lecture is a transcript of the Question and Answer session which followed.

This article responds to the lecture given by the Archbishop of Canterbury, Dr Rowan Williams, entitled ‘Civil and Religious Law in England: a religious perspective’.1 Dr Williams argues that the legal system in Britain must engage constructively with the religious concerns and motivations of members of the diverse communities that make up contemporary British society. My own analysis focuses on the argument that ‘Muslim communities in this country seek the freedom to live under sharia law’, a claim that underpins the lecture and provides the framework for the Archbishop's discussion of the ability of the English legal system to accommodate Islamic principles and law, in order to become more just and equitable for faith-based communities. My empirical analysis, I argue, is not only better equipped to analyse this complex issue but also demonstrates that Muslim engagement with sharia (in matters of family law) is a complex process that cannot be understood in terms of sharia versus state law, Muslim versus non-Muslims, or those considered as insiders of communities versus outsiders.2 Muslim engagement with sharia cannot be understood merely in terms of the need for legal rights and obligations to be reformulated to make faith-based minority communities more legally and socially inclusive. It is also necessary to understand the specific ways in which such legal orders emerge in the British context and, most importantly, the rights and motivations of those members of communities who seek to use faith-based dispute resolution mechanisms – in this case, focusing particularly on Muslim women.

This article considers some of the more high profile cases decided under the Employment Equality (Religion or Belief) Regulations 2003, to assess whether courts are developing case law which adequately protects religion and belief at work. First, it considers the meaning of religion with particular reference to Nicholson v Grainger PLC and suggests that this may represent a step in the wrong direction in defining ‘belief’. It then looks at cases which have involved religious individuals seeking to manifest religion at work in terms of religious dress. It critically examines the way the concept of proportionality has been used to decide these cases, and suggests that at times courts are stepping beyond their usual boundaries in determining religious issues, with particular reference to comments by the courts on issues such whether particular beliefs are ‘core beliefs’. The third area of discussion is the question of whether discrimination by religious individuals on grounds of sexual orientation should be tolerated. The case law (Ladele v Islington Borough Council) is considered in detail. In conclusion, the article assesses whether a hierarchy is developing between different grounds of discrimination protection.

This article traces the recent development of gender equality law, understood broadly to embrace sex, transsexual and sexual orientation discrimination. Against this background it considers the ‘problem’ of religion from two perspectives. First, religion is seen as representing a problematic obstacle to the pursuit of a modern gender equality programme, and this results in judicial tendencies to criticise religion and constrain its significance. Second, religions and religious bodies themselves have difficulties with the new ethic underlying recent legal changes. The tension between religious ethics and the new law has resulted in a series of exceptions for religious bodies. However, these are rather narrow, and can be viewed as the minimum necessary to satisfy international and European human rights standards. The article then considers the enigma of equality and the question-begging nature of much of the law made in its name. It concludes that modern problems are better seen not as a clash between religious liberty and gender equality, but as a shift in conceptions of equality. At the same time, this shift has been accompanied by a significant juridification of what for a long time have been social spaces virtually immune from secular legal regulation. Ironically, a new establishment is being created which barely tolerates dissenters.

In March 2011, the Grand Chamber of the European Court of Human Rights reversed the decision of the Court's Second Section in Lautsi v Italy. The case clearly demonstrates how controversial the use of religious symbols in the public environment has become. This article sets out the complicated framework of the case, assesses the judgment and concludes that the Grand Chamber's decision is unfortunate and, in many respects, objectionable. It will be shown that this decision has implications regarding the malleable nature of the doctrines of the margin of appreciation and consensus, as well as the development of Strasbourg's application of double standards in its case law regarding the public display of religious symbols.

The legal and regulatory aspects of Islamic banking present a challenge to most financial and regulatory authorities. To many observers, legal and regulatory complexity in this respect stems from the link between the banking business and Islamic law. Compliance with some Islamic rulings forces the sector to operate an unusual business model, which is different from that of their conventional counterparts. After expounding the ideological foundation of Islamic banking and the sector's evolution, this article examines the genesis of the legal and regulatory challenge by conducting a compatibility analysis between Islam and banking. It will be argued that the conceptions of Islam and banking ought not to conflict, which means that achieving regulatory equilibrium in relation to Islamic banking is possible.

This paper deals, in an introductory way, with the role which the canon law of individual Anglican churches plays in the wider context of the global Anglican Communion. Part I reflects on the two main experiences which Anglicans have concerning ecclesial order and discipline: that of the juridical order of each particular church, and that of the moral order of the global communion; it also examines canonical dimensions of inter-Anglican conflict. Part II deals with the contributions which individual canonical systems, the Anglican common law (induced from these systems), and the canonical tradition currently make to global communion. Part III assesses critically these contributions, their strengths and weaknesses, illustrates the potential of individual canonical systems for the development of global communion, and reflects on practical ways in which that potential might be fulfilled. Generally, the paper aims to stimulate discussion as to whether there exists a sufficient understanding of Anglican common law to justify: (a) the issue, by the Primates Meeting, of a statement of this, being a description, which itself would not have the force of law, of those parts of Anglican common law which deal with inter-Anglican relations, (b) incorporation of the statement by individual churches in their own legal systems, so that (c) each church has a meaningful and binding body of communion law. in order (cl) to enhance global communion and inter-Anglican relations, and to reduce the likelihood of inter-church disagreement.

This article examines two interpretations of the process of secularisation that can be traced back through European legal and political thought, and a more recent trend that challenges both of them. It does this through the prism of the public sphere, because in today's Europe one of the most debated issues is the place and role of religion in this sphere, understood as the space where decisions concerning questions of general interest are discussed. The article concludes, first, that the paradigm through which relations between the secular and the religious have been interpreted is shifting and, second, that this change is going to have an impact on the notion of religious freedom and, consequently, on the recognised position of religions in the public sphere.1

The use of Islamic norms in the determination of arbitration in England and Wales has become a source of great controversy. Concerns are raised for the human rights of vulnerable parties who may be pressured into arbitrations and who may not be treated fairly under the agreed rules of arbitration or by arbitrators themselves. The Arbitration Act 1996 limits the ability to appeal arbitration decisions and as such does not safeguard the rights of these parties. As a signatory to the European Convention on Human Rights the UK is under an obligation to uphold human rights standards domestically, and it is argued that the way in which arbitration on religious norms is currently regulated does not comply with this obligation. This article considers some of the possible adaptations or alterations that could rectify the situation, improving parties' experience of religious arbitration and ensuring that the system remains compatible with international human rights obligations.

The European Court of Human Rights has stated that Article 9 of the European Convention on Human Rights in its religious dimension is not only one of the most vital elements that go to make up the identity of believers and their conception of life but also a precious asset for atheists, agnostics, sceptics and the unconcerned. In the past 20 years, the Court has been called upon to address the scope and content of the Article in a variety of key cases, involving matters as diverse as proselytism, the grant and refusal of registration of religious bodies, the refusal of authorisations for places of worship and prohibitions on the wearing of religious dress or symbols in public places. The Court's case law has not been without its critics, some complaining that the Court has interpreted Article 9 too narrowly and has given too little weight to the freedom to manifest one's religion in teaching, practice and observance. Others, in contrast, have criticised what they see as the excessive weight given to religion when in conflict with other ECHR rights, notably that of freedom of expression. Still others have charged the Court with failing to interpret Article 9 in such a way as to realise its full potential by not engaging with what is meant by the word ‘religion’. This article considers some of these criticisms, and the need for the Court to strike a balance between the effective protection of individual rights and the need to respect very different constitutional traditions among the Contracting States.1

A distinction which has been much discussed by those concerned with the laws governing churches, especially perhaps the Church of England and to a lesser extent the Church in Wales, is that between canon law and ecclesiastical law. At times, the terms appear to be used synonymously, whilst at others, there is a clear distinction. It is submitted that both views can be correct. However, they are correct only while certain conditions prevail.

There is no universal definition of religion under English law. Instead, different definitions have been developed by courts and tribunals in relation to different religious rights. Although there have been moves towards the harmonisation of these different definitions, recent decisions have reversed that trend. This article explores for the first time how this has led to a confused and contradictory case law. It begins by surveying how religion has been defined in registration law, charity law, human rights law and discrimination law, the moves towards harmonisation and the counter-tendencies in the recent decisions. It places the recent decisions within their broader legal context and points out a number of contradictions and uncertainties. Arguing that a universal definition of religion under English law is now needed, it synthesises the case law to identify the elements of a universal definition that already exist. The article examines how these can be refashioned in order to remove inconsistencies that exist in different areas of law. Drawing upon insights from the sociology of religion, the article concludes by proposing a new definition.

This article considers the litigation in Ghai v Newcastle City Council in which the legality of open air funeral pyres under the Cremation Act 1902, and under the right to freedom of religion and belief in article 9 of the European Convention on Human Rights, was considered. Ultimately the Court of Appeal held that open air funeral pyres within a walled enclosure were not unlawful. But at first instance the Administrative Court, which had assumed that domestic law prohibited such pyres, held that such a ban would not breach article 9 since it was legitimate to prevent causing offence to the majority of the population. It is the approach of the Administrative Court to article 9 (which was not considered by the Court of Appeal) that forms the basis of the critical analysis in this article. In particular it is argued that the Administrative Court undervalued the right to freedom of religion and belief, as against the need to prevent offence to others, and adopted a stance which was overly deferential to Government and Parliament.1

Rastafari cannabis use presents a challenge in reconciling the doctrines of freedom of religion and the criminal law. Hitherto, the domestic courts have not resolved this clash in favour of religion, displaying reluctance to explore the doctrinal limits of religious freedom. This has occurred at a time of increasing Rastafari numbers across the United Kingdom, forcing some followers to choose between adherence to either their religion or generally applicable criminal laws. Such ‘choice’ inhibits the development of domestic religious freedoms where they conflict with criminal laws protecting wider societal and communitarian interests. This dilemma could be addressed through a statutory exemption in England and Wales from domestic anti-drugs legislation for purposes of religious manifestation. This paper examines the difficult balance between the criminal law and Rastafari cannabis claims in the relevant jurisprudence. A comparative analysis highlights that treatment of religious freedom in Rastafari cannabis case law outlines not only doctrinal scope for a domestic religious drug-use exemption, but also some ways in which regulation could be practically framed. Other jurisdictions' attitudes to non-religious recreational drug use are also instructive in this task.1

Early modern Calvinists produced a rich tradition of natural law and natural rights thought that shaped the law and politics of protestant lands. The German-born Calvinist jurist Johannes Althusius produced one of the most original Calvinist natural law theories at the turn of the seventeenth century. Althusius argued for the natural qualities of a number of basic legal norms and practices by demonstrating their near universal embrace by classical and biblical, catholic and protestant, theological and legal communities alike. On this foundation, he developed a complex theory of public, private, penal and procedural rights and duties for his day, to be embraced by everyone, particularly by those who were slaughtering each other in religious wars, persecutions and inquisitions. Althusius' theory of natural law and natural rights was Calvinist in inspiration but universal in aspiration, and it anticipated the political formulations of a number of later Western writers, including Locke, Rousseau and Madison.1

British Quakers are arguably the least dogmatic group in Christendom; indeed, Universalist Friends would not describe themselves as Christians at all. Possibly because of this relaxed attitude to doctrine, some Friends tend also to assume that they operate in a rule-free environment. When I told the clerk of our Preparative Meeting that I was working on an article on ‘Quaker canon law’ her immediate response was, ‘Oh, we don't have any of that’—which is probably why Anthony Bradney and Fiona Cownie gave their recent study of the Quaker business method the gently-ironic title, Living Without Law.

Placing Richard Hooker (d 1600) within the history of European thought has never been easy. The work of this Elizabethan defender of the English Church seems to defy exact categorisation. Publication in the Folger Library Edition of Hooker's complete works has, however, made knowledge about him easier to acquire than it once was, and in particular it makes possible a more accurate assessment of a question of interest to readers of this Journal. How much did he know about the ius commune, the amalgam of Roman and canon laws that governed practice in the tribunals of the Church? More than that, because the Folger Edition includes all Hooker's surviving writing—even his sermons and autograph notes—it is possible to discover more about the ways in which Hooker made use of the legal sources at his disposal, including those from the Roman and canon laws.

Although the protection of churches and holy places was embodied froman early date in Canon law, the law of sanctuary as it applied in England was necessarily part of the secular common law. The Church never had the physical power to resist the secular authorities in the administration of justice, and although those who violated sanctuary were liable to excommunication the Church could not in cases of conflict prevent the removal from sanctuary of someone to whom the privilege was not allowed by the law of the land. The control of the common law judges was, indeed, tighter than in the case of benefit of clergy. The question whether an accused person was or was not a clerk in Holy Orders was ultimately a question for the ordinary, however much pressure might be put upon him by the judges; but the question of sanctuary or no sanctuary was always a question for the royal courts to decide, upon the application of a person who claimed to have been wrongly arrested in a privileged place. The present summary is confined to the position under English law.