Law and Religion in Theoretical and Historical Context (review)

Does religion have a place in the public sphere? To begin to answer that question would first require a definition of 'religion' and 'public sphere' as well as an appreciation of what it means to be in the public sphere. As political theorists such as Jürgen Habermas have noted, religious discourse may, in fact, offer a substantive content that secular philosophy has not yet achieved.¹ Such theorists call into question the assumptions we make about the nature and dominance of secularism in liberal democratic societies. In doing so, they offer an opening for the religiously devout to participate in the public sphere, while disagreeing on how wide that opening should be.

Liberal democratic countries are no stranger to these debates. In Canada, the 'Sharia arbitration debate' in Ontario and Quebec's Reasonable Accommodation commission attest to the difficulties that can arise when religious groups seek accommodation of religious values and practices in different parts of the public sphere, whether in the workplace, in the legal system, or in the halls of government. Thus, for example, the Archbishop of Canterbury, Rowan Williams, was the target of international outrage when he suggested that the British legal system must make room for the pluralism in the United Kingdom, in particular by making space for Sharia-based tribunals for devout Muslims seeking some form of religiously oriented resolution to a limited range of cases. Beyond creating space for pluralism in areas once deemed the exclusive preserve of the state, religious communities also make claims upon the political culture of a society. In 2006, European cities were beset with protests by angry Muslim upset over the publication of cartoons negatively depicting the Prophet Muhammad. The controversy fuelled ongoing debates about when the freedom of speech includes the freedom to offend.

The fact that these episodes involve Muslims and Islam is not a coincidence. Indeed, ever since the Muslim identity of the 9/11 attackers was confirmed, we have witnessed how the debates on religion and law have taken on a special intensity. For those living in liberal democratic societies, the challenges of accommodating religion in the public sphere are often addressed alongside concerns about immigration and security. The negative effect of such an association is to see religion as both foreign and threatening. Religion is viewed as a destabilizing force that must be considered with considerable caution, if not decisively repelled. But to associate religion in the public sphere with foreign threat is more a matter of circumstance than an inherent feature of religion and religious experience in our world today. Indeed, to view religion as such is to blind ourselves to the ways in which religion has been and remains an important feature of the way in which citizens of a state render their lives meaningful.

The editors of the anthology Law and Religion in Theoretical and Historical Context are keenly aware of the problems that arise when considering religion in the public sphere as connected to issues on immigration and security. To avoid reductivism, they present articles that resonate in different registers that address matters of theory, history, and context. The first group of articles offers theoretical analyses of how the liberal democratic state should treat and contend with religion. Whether framed in terms of the freedom of religion or from religion, the theoretical contributions relate important conceptual challenges that arise when considering the place of and space for religion in a liberal state. The second group of articles offers a historical account of how these challenges have been addressed in the past, with examples drawn from the United States and the United Kingdom. The third and final set of articles looks at particular examples of the question of law and religion, such as debates over days of rest or conscientious objectors, to explore how the challenges related to law and religion reveal particular and important features of a given constitutional order.

Specialists in the field...