Speaking in 1888 as part of a course of lectures on ‘The Constitutional History of England’ Frederic Maitland suggested that ‘religious liberty and religious equality is complete’. England’s greatest legal historian would therefore have been somewhat surprised to see the extent to which lawyers in the twenty first century are concerned with matters of ‘religious liberty and religious equality’ both in his home country and around the world.
Today, issues concerning law and religion are never far from the news headlines. Acts of terrorism committed in the name of religion; moral panics concerning the operation of religious courts; controversies about the relationship between freedom of expression and freedom of religion; disputes about the wearing of religious dress and symbols; the role of religion in marriage law and in the education system; and questions about the autonomy of religious groups are just some of the issues that continue to excite controversy in society at large. Thoroughly different and often entrenched views exist as to the role of religion in the public sphere.
These controversies often have a legal dimension. Lawyers – both practitioners and academics – are increasingly focusing upon law and religion matters. In some jurisdictions, law and religion is becoming regarded as an academic subject for the first time, studied and researched like family law or employment law. Elsewhere where aspects of law and religion have long been studied and taught there has also been a significant change: the focus has mutated to increasingly include the study of religious freedom as a human right and the religious laws of religious minorities.
The academic study of law and religion has become more visible and more important in recent years as a result of the same changes that have made the role of religion in the public sphere controversial. In concrete terms, the lack of consensus about the place of religion has meant that recent years have witnessed a significant increase in legislation and litigation about religious matters (a trend which I have referred to as the ‘juridification of religion’). More generally, it can also be observed that these social changes are altering the very way in which we talk about religion. Issues concerning law and religion are now inherently divisive and contentious in our post-9/11 age where the very suggestion that some people may owe a loyalty to a source of authority other than the nation State causes suspicion.
In many respects, it is perfectly understandable that Professor Maitland would not have predicted this situation. There have been a number of complex political, religious and sociological changes that have affected the place of religion within society. These include not only the increased religious pluralism and diversity that has come about as a result in part of increased immigration but also consequences of new ways of thinking. We are now less deferential to authority than we once were and we tend to define ourselves much more by our achieved status rather than our ascribed positions. Modern technology has made the world a much smaller place and has put information at our finger tips. These changes have all impacted upon what we believe and what we consider the role of the law ought to be in terms of accommodating freedom of thought, conscience and religion.
However, it is possible to overestimate the novelty of the situation in which we find ourselves in. The number of moral panics concerning religion in recent years suggests that the lack of consensus about how to accommodate religious difference is a new problem. It is not. It is true, of course, that recent years have seen a number of often unexpected storm clouds concerning religion and that even experts in the field have been taken aback by the torrential nature of the downpour. But while the facts behind such storms are new, the storms themselves have been experienced before. It is the same rain. Concerns about apparently religiously motivated acts of violence are not new. Moral panics about the otherness of those who practice Islam rehearse fears that were previously reserved for those who practiced non-sanctioned forms of Christianity. We have been here before.
However, it is not simply a case of history repeating itself. The storm clouds do differ from place to place. This underlines the need to understand particular downpours in context. Our analysis of any particular storm – say the clash between religious and non-religious views on the nature of marriage – will be enriched if we understand it in the context of other storms across the ages and if we are able to compare the situation across jurisdictions. Explorations of issues concerning law and religion can benefit from the work that has already been done, whether that is historical or comparative in nature.
This is one of the reasons why networks of law and religion scholars such as ICLARS are important. Academic networks provide a number of means by which we can ensure that today’s scholarship builds upon yesterday’s achievements and that we do not simply re-invent the wheel constantly. Conferences and other symposiums, specialist journals and email updates allow us to be aware of what each other are doing. They allow us to draw upon each other’s work and to make comparisons across time and place.
ICLARS is particularly successful in this regard: hosting impressive conferences, maintaining an excellent website and having a number of first class specialist journals. It is now the time to take this further and for ICLARS to launch its own book series, the ICLARS Series on Law and Religion. This will be published by Ashgate who have already published edited works resulting from the first two ICLARS conferences and who have a reputation for producing outstanding cutting-edge work in this field, as shown by their very successful ‘Cultural Diversity and Law’ book series including those published under the framework of the EU RELIGARE project on ‘Religious Diversity and Secular Models in Europe’.
The purpose of the ICLARS Series on Law and Religion is to provide a forum for the rapidly expanding field of research in law and religion and to become a primary source for students and scholars while presenting authors with a valuable means to reach a wide and growing readership. It is intended that the Series will include both monographs and edited collections and will publish at least two books a year.
The Series Editors are: Professor Silvio Ferrari (University of Milan, Italy), coordinator; Professor Pieter Coertzen (University of Stellenbosch, South Africa); Professor Cole Durham (Brigham Young University, Provo, USA); Professor Tahir Mahmood (Amity International University, New Delhi, India); and Dr Russell Sandberg (Cardiff University, United Kingdom), manager.
We are supported by an Editorial Advisory Board which comprises of Professors Anver Emon, Asher Maoz, Benjamin Berger, Carolyn Evans, Domenico Francavilla, Gerhard Robbers, Juan Navarro Floria, Linda Woodhead, Liu Peng, Marie-Claire Foblets, Rajeev Bhargava, Renata Uitz, Richard Helmholz; and Willy Zeze. The composition of the Board underscores our ambition to produce an international, interdisciplinary and innovative series which is at the front of law and religion scholarship.
The Series welcomes proposals for monographs and edited collections on any matter falling under ‘law and religion’ widely defined. We welcome collections arising from important conferences and events and cutting-edge monographs by both established names and by new voices (including monographs based on doctoral dissertations). This includes interdisciplinary works and studies of particular jurisdictions.
The aspiration of the Series is shown by the books which are already under contract and which we hope to publish in 2015 and 2016. We intend publishing two volumes of papers from the last ICLARS conference edited by Cole Durham and Donlu Thayer. We will also be publishing a collection of papers from a conference on ‘Religions and Constitutional Transitions in the Muslim Mediterranean’ held at the University of Insubria, Como last June. The book, edited by Alessandro Ferrari and James Toronto, will explore the role of Islam and religious freedom in the constitutional transitions of several North African and Middle Eastern countries and will employ an interdisciplinary approach to investigate the role of Islam as a political, institutional and societal force.
We also have two excellent monographs under contract. Francis Lyall’s new book ‘Church and State in Scotland’ will provide an up to date exploration of the development and current state of the religion under Scots law. And Megan Pearson is currently writing a monograph based on her doctoral thesis which will explore the law relating to the clash of rights between freedom of religion and the prohibition of sexual orientation discrimination in England and Wales, Canada and the USA. Such disputes, which have included refusals to perform civil partnerships, to provide bed and breakfast accommodation to gay couples or to employ gay people in religious organisations, have often been acrimonious and high profile, receiving a great deal of public and media attention. Starting from the basis that both rights are valuable and should be protected as far as possible, Pearson argues that a new approach, based on proportionality, is required to resolve these disputes.
These books, of course, are just the beginning. We would welcome proposals for edited collections and monographs to be included in the Series. Please feel free to email me at SandbergR@cf.ac.uk or Alison Kirk, the Publisher at email@example.com.
if you have any ideas about books that you would like us to consider for the Series, if you want further information about submitting a proposal or if you have any other queries.
Dr Russell Sandberg
Senior Lecturer in Law
Centre for Law and Religion