The willingness of US journals to publish only slightly amended versions of colloquia provided space for scholars to float ideas, or deal with fairly low-key points, before the development of the blog. The contribution by Michael S Greve, in (1992/3) Annual Survey of American Law 563, would make a rather good – if long – blog post today.

Greve’s central point is that advocates of hate crime in the US are rank hypocrites. Greve, with very broad strokes, sees “them” as being soft on crime, except when it comes to hate crime; intending to target beliefs or attitudes, while denying that the law does this; and much less vigilant on the dangers of hate crime than they are of other state measures. On the last point Greve is concerned that racial hate crimes will be applied disproportionately to different racial groups, and that they will encourage prosecutors to “dig around in defendants’ personal lives for evidence of bigotry” (at 565). The risks of this sort of investigation, Greve argues, would be of enormous concern to the ACLU in any other context.

Having lambasted supporters of hate crime for their hypocrisy, Greve suggests that a much more intellectually serious way to support hate crime would be to accept that it implicates First Amendment rights, but that the state has a compelling interest in restricting them. This approach does not appeal to supporters of hate crime laws because they are too invested in a particular perspective on the First Amendment – and I would add a particularly US perspective on the rights involved – to be able to take that approach. He ends with a call for a different debate:

“A plain admission that we will regulate and punish speech that is fundamentally evil would at least focus our collective attention on important and interesting questions – what it takes to run a free country, and what kind of people we want to be” (at 568)

I differ very substantially from Greve on the substance of his discussion; but his call for striking at the central questions, even when uncomfortable to do so, does resonate. The UK is, once again, reflecting on how to deal with religious capital that is used for ends which are contrary to the national interest (however, and by whoever, that is to be defined). It is tempting to try to reframe this as not involving religious interests and religious rights. How about a plain admission that it does, and a consideration of when and how far we should?

In this article, which appeared in (1997) 33(1) Gonzaga Law Review 241, Credence Fogo-Schensul does not just argue for allowing holocaust denial laws, which is something of a challenge in the US context, but for an international law requirement that states have such laws. In part, Fogo-Schensul bases this on a reading of UN documents starting with the Charter, which leads to the conclusion that “the Holocaust is a juridical fact, under both treaty and customary international law” (at 255). The emphasis that the US gave – and gives – to freedom of expression does not take account of this, and to what Credence sees as the exclusion of Holocaust denial from international law’s freedom of expression norms.

Fogo-Schensul covers a lot of ground, and much of the discussion is really about inciting racial and religious hatred – an area where, it must be agreed, the US is something of an outlier. A case for Holocaust denial being – distinctively and in itself regardless of the motive of the denier – criminal is not really made.  There are flickers, for instance a discussion of the idea of mental harm to minorities, but these are not sustained. Fogo-Schensul also seems more relaxed with the idea of “juridical facts” determining historical content, and punishing people for disagreement with these juridical facts, than I could ever be. This to me is the difficulty with laws criminalising holocaust denial. Perhaps holocaust denial is intended as a place-holder for extreme hatred of those groups who suffered during the holocaust, but others may deny the holocaust with a different motive. Consider Bertrand Russell’s “Five Minute Hypothesis” – which for the absolute avoidance of doubt I should stress he found neither a convincing description of reality, nor interesting:

“There is no logical impossibility in the hypothesis that the world sprang into being five minutes ago, exactly as it then was, with a population that “remembered” a wholly unreal past. There is no logically necessary connection between events at different times; therefore nothing that is happening now or will happen in the future can disprove the hypothesis that the world began five minutes ago”.

The “five minute hypothesis” is an extreme, but some religious groups have argued, and continue to argue, for the creation of the world by a divine being which has included signs of much greater age. Readers who know of an extreme young-Earth community who teach that the world was created after 1945 should get in touch. And what of those groups who teach that the material world is illusory?

I am being mischievous – supporters of holocaust denial laws would argue that they require a much more specific sort of denial than I posit above. But I remain nervous of law being used to stifle disagreement with “juridical facts”.

One of the things I love about law and religion is the ubiquity of the subject. Religion pervades every area of human life, and so can be relevant to every sort of legal interaction. That is one of the reasons I remain nervous about the development of a canon of the subdiscipline of law and religion. Religious freedom law around Article 9 and the Human Rights Act is extremely important; as is equality law around the Equality Act. But there is more to the interaction of religion and law than this. So my eye is always caught by articles appearing off the beaten track for the field – for instance this case-note in (1995) Farm Tax Brief February 14.

The case-note deals withi R v Sheffield Housing Benefits Review Board (The Times, 28 December 1994). The case concerned members of a religious group, which required its adherents to live in community houses on terms which included obligations of a “spiritual and domestic nature”. If the tenancy was “otherwise than on a commercial basis”, housing benefit would not be paid. Blackburne J held that in assessing whether there was a commercial basis, it was important to look at the arrangements as a whole, and not just to look at the rent payable. This approach is endorsed by the Farm Tax Brief case-note writer, who suggests that it may usefully be applied to areas more directly relevant to their readership, especially around inheritance tax where “it is sometimes necessary to be able to show whether a transaction, particularly one within the family, has been undertaken on what might be regarded as commercial terms”.

In “Body Politic or Bodies of Culture? How Nation-State practices turn citizens into religious minorities” (1998) 10(3) Cultural Dynamics 263, Gerd Baumann argues that South Asian settlers in Britain, although enjoying full civic status, were not experiencing full integration. In particular, based on fieldwork in London, Baumann argues that the British approach “leads to the encorporation of religious congregations into putative bodies of culture, and it delays the incorporation of new citizens into the body politic”. Baumann uses encorporation to mean the “transformation of traditions and currents into putative bodies of people”,with the possibility that they will then be depicted as “an autonomous body placed beyond and outside the relevant boundaries”.

The theoretical focus of the piece is secularisation theory, and Baumann is robust in his attacks on some of those writing at the time. This hasn’t perhaps aged very well – not because it is weak, but because so much has happened.  But one of the most valuable things about this short, punchy, article, is the take on British legal and adminstrative practices. I’ve read and reread Mandla v Dowell Lee, but hadn’t thought to describe the famous test of Lord Frazer as “pseudo-anthropological”; to consider whether the creation of Community Religions Councils were “strategies of domination as well as the creation of new categorical identities”; or see mobilising temples and churches to encourage those entitled to British citizenship to claim it before a change in the rules as “the paradox of a modern nation-state drawing upon religious institutions to perform its most basic foundational act, the creation of citizens”.

I’ve been thinking about comparative Church/State relations. As an outsider, I can look at France or the US, and see something foundational to the way those legal systems look at church/state relations. Doing the same for my own jurisdiction is more difficult. Baumann’s “enculturation” has something to offer, perhaps even shorn of its firm condemnation of what it describes.

In “Divine accommodations: Religion in the workplace” (2000) Risk Management October 12 William Atkinson takes a practitioner take on religion in the US workplace. He sees religion as the next fight for rights in the US workplace, following on waves of race, gender, and sexuality. Employers face more challenges as the general population become more religious, more diverse in their religion, and more aware of their legal rights.

Atkinson argued that there were three challenges on the way. Firstly, determining religious accommodation. Secondly, defining religious freedom of speech. Thirdly managing a religion-based company. From 2000, Atkinson seems to me have largely nailed  hot topics, missing from his explicit list only broader challenges of competing rights.

In this magazine length article, Atkinson includes a very short case study of Intel, which sees itself as going well beyond legal duties in the area; and as a result does not face disputes around compliance with the law. I was reminded of the idea in Jewish law of khumra – a rule that exceeds the bare requirements of halakha – based on Deuteronomy 22:8: “When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof”. To what extent does HR policy and training in an organisation deliberately seek to establish a khumra? In some instances, may they do so inadvertently because of an (understandable) nervousness about violating equality or religious freedom laws, and an assumption that an overly broad interpretation of the legal obligations of the business must be on the safe side?

In this article in (1982) 13 International Journal of Philosophy of Religion 103 Ian Walker considers Hume’s definition of a miracle as a violation of the laws of nature.

As part of this process, Walker expands out this definition, stressing that the violation needs to be non-repeatable as repetition would accord it some degree of regularity, and thus the possibility of according with the laws of nature. I’ve obviously been a legal academic far too long, as this instantly reminds me of constitutional conventions – violate them once and you may face a constitutional crisis; violate them often enough and they cease to be a constitutional convention.

The difficulty with claims of miracles, or have I have described them elsewhere, exceptional claims, is that the very framework by which we decide how to evalute them itself depends on assumptions which the miraculous cast into doubt – assumptions which legal actors are very likely to find more comfortable than the possibility of non-repeatable violations of the laws of nature. As CS Lewis put it:

“If immediate experience cannot prove or disprove the miraculous, still less can history do so. Many people think one can decide whether a miracle occurred in the past by examining the evidence ‘according to the ordinary rules of historical inquiry’. But the ordinary rules cannot be worked until we have decided whether miracles are possible, and if so, how probable they are. For if they are impossible, then no amount of historical evidence will convince us. If they are possible but immensely improbable, then only mathematically demonstrative evidence will convince us; and since history never provides that degree of evidence for any event, history can never convince us that a miracle occurred. If, on the other hand, miracles are not intrinsically improbable, then the existing evidence will be sufficient to convince us that quite a number of miracles have occurred.”

A party in a legal action sincerely seeking to rely upon the miraculous in their case may wish to reflect on the working out of this conundrum in  Duncan [1944] 1 KB 773, in the Court of Appeal.  Their legal advisor may want to unwind with the excellent Hellish Nell: Last of Britain’s Witches by M Gaskill.

In this article, published in (1988) 137 U of Penn Law Review 271, Justin Miller considers shunning – that is, the deliberate withdrawal of social, spiritual and economic contact from someone who is no longer a member in good standing in their religious community. This can have a powerful impact on the person shunned, and, Miller argues, is intentionally harmful conduct. Miller argues that the US had struck the balance between individual and group rights at the wrong place, finding an absolute constitutional protection for shunning which was inappropriate – in part because the free exercise rights of the individual being shunned have not been properly taken into account.

I enjoyed Miller’s focus on the legal relationships between individuals, as opposed to the occasionally too dominant focus on what is often called church/state relations. This shift in emphasis follows if we see a legal relationship between a religious community and its members, rather than simply relationships to the state. Nonetheless, a state retains at interest in how such disputes are resolved. As Miller says, “The state is not a party to the suit; its interests are represented by the court”.

I was less convinced by how firmly Miller came down against a strong right to shun (or rather, right not to be compelled to abstrain from shunning). The right to exit has a long standing place in thinking about religious freedom, and shunning feels to me to be related. The individual may have left the religious community and object to the severity of the consequences which follow; or they may have been expelled from the community against their will. In either case the community, and its individual members, is exiting from a relationship with the shunned person on religious grounds. The harm to the individual – at least in those cases where they have sued – is clear, but three further questions strike me. (a) How much of this harm is the loss of benefits they enjoyed through their former religious affiliation, that is a reduction to the base line had they not been a member of the religious community?; (b) How much of the left-over harm is a burden that the individual bears for exercising their religious rights, while the state respects the  religious rights of others?; (c) Does Free exercise really extend to a legal interest in remaining within a community while rejecting the beliefs of that community to such an extent that it has resolved on shunning, even if (as Miller points out astutely) it is the community that has changed rather than the individual?

For when 140 characters just isn’t enough …

This is a blog for short posts linked to @edge_law the twitter account of Professor Peter W Edge, of the School of Law at Oxford Brookes University. Full professional profile at: http://t.co/PZPHG1iwo3.