Law's Religion

Religious Difference and the Claims of Constitutionalism

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Benjamin L. Berger
  • Toronto, ON: 
    University of Toronto, Scholarly
    , November
     2015.
     240 pages.
     $26.95.
     Paperback.
    ISBN
    9781442612068.
     For other formats: Link to Publisher's Website.

Review

Conflicts between law and religion, far from being more effectively managed by secular, liberal legal systems, have in fact intensified in recent years. Law’s Religion examines how conflicts between law and religion are conceptualized and resolved within the culture of Canadian constitutionalism. According to author Benjamin Berger, in such conflicts, the law is positioned as an autonomous sphere above culture, positing a set of (supposedly) neutral, objective criteria that adjudicate claims through the filter of rights-based jurisprudence. The terms of law serve as the orienting frame of understanding and legitimacy, filtering religion with respect to law’s own defining commitments rather than those of religion. The law perpetuates its own normative assumptions, which are drawn from the political culture of liberalism; seeing religion as essentially individual, private and related to autonomy, and choice. In so doing, law reframes religion in its own image, either by requiring the religious ideals and commitments in question to conform to those of the constitutional culture, or by giving its imprimatur to those commitments that are consistent with law’s cultural commitments.

The principal purpose of Law’s Religion is to trouble this account of law as above culture, and instead to conceive law as itself a form of culture. As such, the constitutional rule of law is an aspect of the challenges of legal pluralism rather than the answer to it. This work is primarily designed as an effort at reconceptualization rather than as a proposal for doctrinal reform or specific “solutions.” It does however argue that the “conversionary” mode of cultural engagement should be abandoned in favor of an approach whereby law engages with and seeks to interpret the cultural other (religion) but from a perspective within the constraints of law’s culture.

Law’s Religion is well written and in many ways illuminating; it contains interesting analyses of leading cases and offers numerous insights drawn from a wide range of theorists. It is not clear, however, whether Berger entirely succeeds in his main goal. First and foremost, I am not convinced that the central analytical framework adopted by this book—drawn from frameworks and models of cultural engagement—has as much explanatory power as the author considers it to have. At one level, it seems to merely restate, in the language of cultural engagement, what is an obvious truth. It is not in question that the law is, of its very nature, coercive and binding: adopting Berger’s terminology, law is inherently “conversionary” or “colonial.” To take an obvious example, where a crime has been committed, the law imposes sanctions on the perpetrator, and the accused’s subjective beliefs as to the rightness or wrongness of the criminal conduct are irrelevant as to its criminality. The conflict between law and religion is situated within this broader context of the nature of law. That “religion” should be subject to the law is unsurprising. That it should do so on the law’s terms is equally unsurprising.

The author’s proposed alternative, that the conflict between law and religion should be seen as a conflict of cultures, seems to suggest a meeting of equals, or a “head on” conflict that does not accurately capture the true essence of the conflict. Unlike other forms of cultural engagement, law and religion are not commensurable, but operate on different planes: law makes no pretension to offer comprehensive truth claims about the nature of reality. A better metaphor would be, perhaps, selective engagement rather than head on confrontation. This explains how the law can maintain its conceit of autonomy: the law’s selectivity does not deny the importance of religion’s commitments, only their relevance to judicial adjudication. That is, it makes no attempt to challenge religion’s fundamental commitments, but engages with them only to the extent necessary for the purpose of resolving disputes. The key point is that, in so doing, the law does not necessarily pronounce on the legitimacy or worth of that religion, as Berger assumes.

One weakness of the book is a narrow, adjudicative-centric model of “law.” Although speaking of “law” generally, the book almost exclusively focuses on conflicts between law and religion, manifested in litigated controversies, and as determined by a court. However, the “law” is broader than judicially determined principles, and court disputes are not the only way in which “law” may interact with religion. I note in passing that most disputes never end up in court, and legal processes typically mandate mediation and non-adversarial methods for resolving disputes. Religious groups are often active players in democratic processes, and religious beliefs can animate legal structures and reforms. Christianity has had an enduring impact upon Western law, and many of the cherished aspects of Western legal systems would not have existed save for that impact. Accordingly, law can be, and often is, an expression of religious principles. Is religion, therefore, engaging in a conversionary mode of engagement with law? The interaction between “law” and “religion” may be more complex and variegated than the picture painted by Berger.

As a final reflection, it is of great interest to me that many of the insights relating to Canadian constitutionalism identified by the author are not apposite in relation to Australia. In Australia, the law (or more accurately, courts) often admits its powerlessness to determine controverted questions of law and religion, and often concedes that law is not the ultimate arbiter of the terms that will settle the dispute. This is partly, no doubt, a result of judicial culture, but it is tempting also to consider that Canada’s Charter of Human Rights and Freedoms—which sets out judicially enforceable rights—is one major source of the difference. By defining the rights to religion and equality as constitutionally entrenched rights, courts are forced to filter contested political issues through the lens of rights adjudication, and to cover these with the cloak of judicial neutrality. By contrast, without a Charter (or equivalent), Australian courts are more than happy to let contested political questions be determined by the political process.

About the Reviewer(s): 

Benjamin B. Saunders is a teaching scholar at Deakin University, Australia.

Date of Review: 
December 12, 2016
About the Author(s)/Editor(s)/Translator(s): 

Benjamin L. Berger is an associate professor at Osgoode Hall Law School at York University.

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