Guardian makes British law’s determination of religious questions seem novel
Apologies for the not-very-snappy headline. In The Guardian on Wednesday, an editorial was published called Supreme court: Tangled up in faith. It details the current case in front of the new Supreme Court in London regarding the Jews’ Free School.
The article makes it seem as if this is the first time a British court has had to dabble theologically. It seems like something of a novelty.
It’s not. It may be the first case that the new Supreme Court has had to deal with it, but we’ve had at least one example of it in recent years at the appellate level: the case of Shabina Begum. See [2004] EWHC 1389 for the High Court judgment, [2005] EWCA Civ 199 for the Court of Appeal judgment and [2006] UKHL 15 for the Lords judgment.
In this case, Ms. Begum decided for whatever reason that although her school had made provisions for female Muslim students to wear an agreed uniform that conformed to their interpretation of Islamic dress, she preferred to go outside of the uniform policy and wear a full jilbab. In paragraph sixteen of the 2004 High Court judgment, the views of Dr. Abushady from the London Central Mosque Trust and the Islamic Cultural Centre are reported. Meanwhile, a few paragraphs later in para. 20, Dr. Ahmed Beloafi from the Centre for Islamic Studies in Birmingham is cited with his opinion which he derives from “Shiekh Al-Albani from various sources of Islamic Jurisprudence (Fiqh)”. The following paragraphs give the views of Iman Hazarvi and Iman Khateeb.
Feel free to read the rest of the judgments.
I think it’s absolutely intolerable that the courts of the United Kingdom are making decisions as to the theological constructs of various religions. The courts aren’t qualified, and the fields themselves aren’t suitable for that kind of judgment. Let’s use Christianity as an example: let’s say that you are a Christian and for some reason the Court of Appeal are going to decide whether or not wearing a cross around your neck is, as you say, a requirement of true Christianity. They decide that it isn’t. But you still think it is. This hasn’t solved the problem. The court shouldn’t be deciding whether or not your request is reasonable, based on true premises or anything else. Anyone who has read Kierkegaard will know of his analysis of Abraham - you cannot communicate inner subjective or religious feelings - they are beyond the ethical, in Kierkegaardian terms. If I honestly believe that I ought to wear a crucifix, there is no way I can convince anyone else that I’m right about this, nor is there any way for them to convince me that I’m wrong. At least in some circumstances.
If the only way to make a policy work is to have to have judgments about whether or not a particular religious expression or requirement of a faith is reasonable or justified, then that should be the clue that the policy is a bad idea.
Given this, a whole lot of stuff goes out the window. Faith schools require some public official to determine who is in and who is out faith-wise. That can be very arbitrary. Is someone who has been going to church for five years a Catholic for the purpose of school admission? How about for ten? What about if they believe in all the Christian dogmas but take a particularly unique view of Matthew 6:5 (“And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men. I tell you the truth, they have received their reward in full.”) and other verses in the N.T. that you should not attend church but pray and worship in absolute privacy and not tell anyone about your beliefs. Not very Biblical (there are other parts of the Bible that would contradict such a reading), but I’d say that it probably ought to count as a Christian belief. Who decides? Some headteacher? A board of governors? The Church?
That’s all really misguided. In a secular, multi-cultural society, if you want to protect people’s right to practice faith freely, public bodies shouldn’t be deciding on theology.
In Begum’s case, she should have adhered to the uniform policy or found a school with a more suitable uniform policy. Similarly, rather than craft goofy exceptions to the uniform rules, they should have just got rid of the policy.
I mean, if you look at the scholarly literature, it’s difficult enough to come up with a “theory of religion” - that is, some idea of what is and is not a religion. Every few years, someone tries, a big old shit-flinging contest happens and then everyone pretty much settles back down to a rough Wittgenstinian ‘family resemblance’ consensus. Which isn’t really an answer at all: it just says that when we say religion, we are all pretty clear that things like Christianity, Islam, Hinduism and so on are religions, and things like going to a football match aren’t (except in the dull editorials by theologians and social commentators who want to say “everyone’s got religion - huh huh - like football or reading Dawkins or smelling their own farts”, but they are stupid and nobody cares what they think), and maybe something like Secular Humanism or Dianetics are on the borderline, but it’s all really determined by usage. Yeah, doesn’t answer the question.
Anyway, the point is - there’s really a bit of a shortcoming on how you actually define a religion - it all feels a bit like “I know it when I see it”. Why are we basing public policy on this idea?
