The Courts and the Colonies: The Litigation of Hutterite Church Disputes (review)

At the core of Alvin Esau's fine book is a dispute among several Hutterites about a patent for a hog-feeder. It appears that a Mr Hofer invented the device but that another colony, home to a Rev. Kleinsasser, leader of a broader grouping of the Hutterian Brethren Church, obtained the patent for it, thus gaining a lucrative business. Understandably, Mr Hofer and several people around him were upset. Internal efforts to resolve the dispute failed largely because they approached it as a question of insubordination rather than as one of who invented the hog-feeder. Before long the colony, supported by the broader grouping, excommunicated the Hofer group. This meant that they were required to leave the colony. When they refused, the leaders launched court action to have the police remove them by force. But Hofer's group then launched counterclaims. The ensuing actions were argued in Manitoba's courts for eight years.

Esau's recounting of the legal issues in these complex developments is valuable in itself. But he does much more. Esau is interested in the issue of religious freedom, particularly for groups such as the Hutterites. He elaborates on their theologically-based pacifism and non-resistance, and on how they – like Mennonites and other groups who come from the Anabaptist wing of the sixteenth-century Reformation – have held that they should not rely on the power of the state. Esau notes how Hutterites and other groups have moved away from this principle. Hutterites, he says, have long been willing to use the courts to protect their way of life against governmental actions or actions by neighbours. Further, insurance companies covering Hutterites have taken legal action on their behalf. However, the practice whereby Hutterite leaders seek the power of the state to enforce a church order – in this case, the ban of excommunication – violates the principle of non-resistance in a more profound way. Esau shows that by so tenaciously drawing the courts into their affairs, Hutterite practices and procedures were scrutinized and evaluated in terms of 'outside law,' with the result that the regime of religious freedom that has made their life in Canada possible may have been weakened.

In his concluding section, Esau describes four models for approaching the question of religious freedom. In the 'Outside Law Sovereignty' model, the law of the state is sovereign, with the result that 'inside law,' meaning laws that Hutterites might have internally, are dependent on the mercy of the state. Esau holds that this reflects the Canadian approach. In this model, 'inside law' is likely to be upheld to the extent that it can be translated into 'outside law' categories such as contracts, trusts, and corporation by-laws. In the 'Outside Law Abstention' model, which Esau says is more characteristic of the US approach, courts will recognize certain ecclesiastical matters as falling within the sovereignty of the 'inside law' and will tend, therefore, to refrain from claiming jurisdiction. The third and fourth models, 'Outside Law Deference and Neutrality' and 'Balancing Outside and Inside Law,' combine elements of the first two in different ways.

Esau says that the Canadian Charter of Rights and Freedoms does not apply to the kind of 'private disputes' described in this book but that there are other disputes involving Hutterites to which the Charter would apply. Esau is apprehensive about whether it would support the regime of religious freedom that the Hutterite way of life requires.

The Hutterites face other challenges too. One is the increased interaction with the larger society that follows from the increase in manufacturing done in Hutterite colonies. Another is the influence of groups such as the New England-based Bruderhof, seen as a source of renewal by some Hutterite leaders and as a cause of conflict by others.

Esau's references to these factors in the social and economic context and his understanding of the theological issues supplement his thorough analysis of the legal issues and specifically the...