This paper examines the concept of ‘transformative accommodation’, which the Archbishop of Canterbury invoked in his February 2008 lecture on ‘Civil and religious law in England’, stressing the need for both the state and religious communities to contemplate internal change. Although he made no substantive proposals on jurisdictional issues, this proved the focus of subsequent public comment. I suggest that jurisdictional issues cannot be avoided, despite the diplomatic interest in doing so, as may be seen from a reading of the January 2008 European Islamic ‘Charter of Values’. Missing from the debate thus far is consideration of the (necessarily theological) criteria for accommodation within religious communities. I seek to provide a preliminary discussion of such criteria from the viewpoint of Jewish law. First, an outline of some published research on religious marriage in Judaism and Christianity is provided as a case study. I then sketch the jurisdictional situation in the modern State of Israel, before considering the possibilities for transformative accommodation in English law, in the light of the preceding analysis. A brief conclusion indicates some questions that the analysis might pose for Christianity.1

The Dioceses, Pastoral and Mission Measure 2007 is the longest and widest-ranging piece of legislation to come before the General Synod since the early 1980s. Like the recommendations of the Review Group under Professor Peter Toyne, to which it gives effect, the Measure focuses on the twin themes of mission and ministry. The Review Group's remit was ‘to ensure flexible and cost effective procedures which fully meet changing pastoral and mission needs’, and the Measure extends to areas of the life and legislation of the Church of England as diverse as the Church's provincial and diocesan structure, the delegation of episcopal functions, diocesan administration, and the processes for making changes to local church organisation and closing churches for regular public worship. The Measure also establishes a single central Church source of information and advice on church buildings. Finally, it provides a very practical example of the concept of a ‘mixed-economy church’ by laying down the legal framework for the new bishops' mission orders, which are intended to provide endorsement, supervision and support for a wide and growing variety of new mission initiatives, but without undermining the traditional parochial structures. The article sets out to provide an overview of the legislation, and to highlight the provisions that are likely to be of particular importance in practice or of particular interest for the study of ecclesiastical law.

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

Details of complaints under the Clergy Discipline Measure 2003 are beginning to come into the public domain. In particular, they raise questions as to the appropriate penalties to be imposed on a respondent, although even more worrying may be the anecdotal misunderstanding among some of the clergy about the moral behaviour expected of them. In addition, procedural questions remain that are not addressed in the written determinations. Such questions include the proper interest in making, and the motive behind, a complaint; the admissibility of hearsay evidence to support a complaint; and episcopal intervention and the bishop's role in reaching his decision.

This paper looks at the systems available for the control of works to churches, and considers the arguments for and against the ecclesiastical exemption from the secular system of listed building control. It also examines the principles underlying the exercise of the faculty jurisdiction in relation to works to churches, both those that are listed and others, and relates this to the most recent policy guidance from English Heritage.1

In many modern works of ecclesiastical law, the Institutes of Sir Edward Coke are given as the authority for the consecration of buildings as places of public worship. For authority Coke relies on scriptural precedent. This paper suggests that, in fact, the origin of consecration as a legal precedent lies in pre-Christian Roman law.1

This paper examines the condition of women in both Israel and Islamic countries, specifically their freedom to leave a marriage, and compares respective models. First, the study analyses the peculiar relationship between secular and religious law in Israel and Islamic countries. Second, it studies the nature of marriage as a contract in these legal systems, comparing a totally private approach and a mixed, public–private approach. Third, it analyses the possibilities of dissolution of marriage in such legal systems, indentifying some aspects of gender disparity. Finally it discusses some juridical tools offered in these legal contexts, which are intended to rebalance the exercise of a woman's freedom to leave a marital relationship and its conditions.

The Canon Law of the Roman Catholic Church establishes the right of the Church to proclaim the Gospel and expound it, and to proclaim moral principles especially when this is required by fundamental rights or ‘for the salvation of souls’ (Canon 747). While this was taken for granted for centuries, society and culture have undergone rapid and extensive changes, especially over the last forty years. From what was once a Christian society and culture, we have moved to a multicultural and secular society, and have seen the rise of ‘ideological secularism’. The place of religion and religious values in the public forum is being questioned, and an aggressive secularism seeks to reduce religion and its practice to the private sphere. However, a healthy secularity should recognise both the autonomy of the state from control by the Church and also the right of the Church to proclaim its teaching and comment on social issues for the common good of humanity. This right is recognised in the 1948 Universal Declaration of Human Rights and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. From the Church's point of view, this right was recognised for all religions in the Second Vatican Council's ‘Declaration on Religious Liberty’. We must defend that right because the Church exists not for its own sake but for the sake of humanity.

In the decades that followed the close of the Second Vatican Council, great progress was made in the dialogue between the Anglican Communion and the Roman Catholic Church. During that period, the Anglican–Roman Catholic International Commission (ARCIC) was founded in 1967 by Pope Paul VI and the Archbishop of Canterbury (Michael Ramsey). The rich and common heritage shared by Anglicans and Roman Catholics found expression in the work and statements of ARCIC. In the background was the work of theologians, historians, liturgists and Scripture scholars, and many relationships were being cultivated locally in dioceses and parishes around the world. While the possible significance of Church law had been recognised in the 1974 World Council of Churches Report, Christian Unity and Church Law, there has been no sustained discussion of canon law in the work of ARCIC.

This is the first in what is intended as a series of comments on current developments in the law concerning freedom of religion that will appear regularly in this Journal. This first survey deals with religious liberty challenges brought in the UK courts in 2007 and 2008. A subsequent survey will examine similar developments in international human rights law and especially before the European Court of Human Rights.

In Spain, immigration has been one of the main reasons for a significant number of conflicts regarding the use of religious symbols. In this context, the fundamental rights and freedoms enshrined in the Spanish Constitution are expected to play a very important role as a criterion to solve these tensions. However, a more accurate response is provided by case law, where the variety of circumstances that surround each conflictual situation can be taken into account to reach the best solution.1

In January 2009, this Journal published an article by Kenyon Homfray, ‘Sir Edward Coke gets it wrong? A brief history of consecration’, which was concerned with the historical origins of a legal concept of consecration. While it is not especially germane to the direction of Mr Homfray's argument, his statement that ‘[i]n England, consecration does not appear to have any recognised legal effect on any land or building not belonging to the Church of England’ was somewhat surprising. It may be that he intended the expression ‘belonging to the Church of England’ as meaning no more than ‘affiliated to’ the Church of England or something similar. If that is all that was meant, then the statement could be accepted as more or less correct: consecration for worship according to the rites of, for example, the Roman Catholic Church would not have any effect in English law. But the words ‘belonging to’ would naturally tend to imply ownership of the land or building in question by the Church of England, in which case some qualification is needed. It may, therefore, be helpful to set out, briefly, the extent to which consecration is recognised, and has effect, in English law.

In 2004, this Journal published a case note of a decision by District Judge Thomas in the Gloucester County Court. At issue was the leeway permitted a District or Parish Council in discharging its obligation of maintaining a closed Anglican churchyard ‘by keeping it in decent order and its walls and fences in good repair’. The Parochial Church Council had passed responsibility for maintaining the churchyard to the Parish Council, which, in turn, had passed it to the District Council. The obligation was (and still is) no more and no less than that of the Parochial Church Council before the transfer. It is, said the note, ‘one of substantive maintenance and not merely management of decline (note the relief granted at first instance in R v Burial Board of Bishopwearmouth (1879) 5 QBD 67 at 68)’.

A century and a half ago, Mormons made national headlines by claiming a First Amendment right to practise polygamy, despite criminal laws against it. In four cases, from 1879 to 1890, the United States Supreme Court firmly rejected their claim, and threatened to dissolve the Mormon church if they persisted. Part of the Court's argument was historical: the common law has always defined marriage as monogamous, and to change those rules ‘would be a return to barbarism’. Part of the argument was prudential: religious liberty can never become a licence to violate general criminal laws ‘lest chaos ensue’. And part of the argument was sociological: monogamous marriage ‘is the cornerstone of civilization’, and it cannot be moved without upending our whole culture. These old cases are still the law of the land and most Mormons renounced polygamy after 1890.

The decision in Eweida v British Airways that there was no discrimination where a Christian member of check-in staff was not allowed to wear her cross visibly at work has received much publicity, despite the fact that BA changed its policy before the case even reached the tribunal. The case raises many questions about the equal treatment of religions and the question of whether religious practices must be mandatory before they are protected, issues which have been discussed elsewhere in this Journal. The focus of this article, however, is the implications of the decision for the application of indirect discrimination to those who hold minority religious views.

The Human Rights Act 1998 has led to an increase in domestic litigation concerning Article 9 of the European Convention on Human Rights (ECHR). Most such cases have been unsuccessful, particularly at higher level. Moreover, such claims have increasingly failed due to lack of interference under Article 9(1) rather than on grounds of justification under Article 9(2). This has meant that litigants in religious dress cases are now arguing anything but Article 9: the most recent case, concerning the wearing of the Sikh Kara in Aberdare, was successful because, while the school saw the issue as one concerning Article 9, the claimant's legal team relied instead on race and religious discrimination laws. It is not surprising, therefore, that the House of Lords rejected the most recent argument made on grounds of Articles 9 and 14. It is the merits of that argument and the haste displayed in its rejection that are the focus of this brief comment.