In this important new text Professor Rivers seeks to undertake a systematic study of English law as it applies to organized religion, and in the process has produced a meticulously researched and insightful text which will be of great value to students, scholars, and legal practitioners working in the field of law and religion. The text provides comprehensive analysis of doctrines drawn from a wide range of areas within English law, but at the same time seeks to develop an understanding of the constitutional principles concerning organised religion – as he says “it has largely been the systematic articulation of legal doctrine in textbooks which has provided English lawyer with their frameworks of principle” (p. 317).
After addressing definitional issues in relation to both religion and organized religion fairly briefly, Professor Rivers in his first substantive chapter gives an overview of the changing laws of Church and State in England, with a much tighter focus on legal doctrine than is normally found in such discussions. Earlier periods are treated narratively, but as we come closer to the present day discussion switches to a more thematic structure, pulling out the legal abandonment of explicit adjudication between religions and worldviews, the differentiation between public and religious services, the increased independence of the established churches from state control, and an increasing emphasis on individual conscience in the law's approach to religion. This chapter is a fine, focussed, overview of the key developments, but consideration of historical context is by no means limited to the introductory chapter. Rather, he draws out the relevant background of current law throughout the text, for instance in his discussion of welfare (chapter 9), which lightly but cogently places modern developments in a context derived from the Reformation.
The second part of the text, chapters 2–5, focuses on the constitution of organized religions, with chapters covering the human rights of religious associations (chapter 2), the constitution of religious bodies (chapter 3), ministers of religion (chapter 4), and public religion (chapter 5). Chapter 2, as would be anticipated in any human rights discussion, draws heavily on international law, particularly the European Convention on Human Rights. Discussion of the rights of religious associations under the ECHR is authoritative, but might have covered the issues of interaction between religious, associational, and non-discrimination rights more fully; and passes comparatively quickly over the sorts of rights which may be claimed by different sorts of organizations (p. 57). Perhaps more fundamentally, the chapter ends with a list of what Professor Rivers sees as the rights of religious organizations (pp. 55–77). Some of these rights are more patent from the sources than others, but all are dealt with comparatively briefly. Chapter 3 turns to the constitution of religious bodies, and brings the focus back to English law. This is an excellent chapter, which is likely to provide a definitive reference point for future work, and should inform judicial consideration of how to balance enforcement of state law with religious liberty. Chapter 4 is a wide ranging consideration of the law concerning ministers of religion, with coverage of important areas often neglected (for instance the immigration rules concerning ministers).
The centre of gravity of this chapter, however, is the topical subject of the employment of ministers of religion. The discussion of cases around any presumption against intention to form a contract for ministry is insightful, but Professor Rivers goes too far in asserting that “[t]here is no reason to prefer an analogy with commercial organizations over one with domestic arrangements” (p. 120). This is an excellent starting point for an interesting argument, but is not developed here. Chapter 5 brings together two key areas of law under the heading of public religion – by which is meant the treatment of religions with a higher status which gives access to privileges and responsibilities linked to a particular public role. The principal candidates for such a regime in the UK are the registration of places of worship, and charitable status. The detailed discussion of both regimes is of a very high standard, but more consideration might have been given to government initiatives aimed at increasing use of the regimes by religious groups.
This second part is notably for the quality of the discussion, and the cohesiveness of the chapters. The third part of the text, aiming to deal more with the activities of religious organizations, continues the quality of the doctrinal discussion, but loses some cohesiveness. Individual chapters discussion chaplaincies (chapter 7), faith schools and faith based welfare (chapters 8 and 9), and access to public discourse (chapter 10). It also includes a chapter on “Regulated rites” (chapter 6). This chapter works less well than the others, with the legal context of a subset of manifestations of religion covered. Professor Rivers sets out his criteria for inclusion at the beginning of the chapter, seeking to exclude ritual acts which are either legally indifferent, or legally irrelevant. The examples he gives illustrate the difficulties of distinguishing between ritual acts suitable for inclusion and others – for instance, there is evidence that criminal acts committed in a ritual context have been punished more seriously than similar acts without such a context (cf. p. 181). An alternative way of framing the discussion is to concentrate on specific accommodation of matters of worship and ritual, or those accorded legal significance, or those subject to their own distinctive legal regime (p. 181). Later, and seemingly inconsistent with either way of framing the chapter, Professor Rivers discusses spiritualist services, where his main (and sensible) critique is that the relatively specific regime under the Fraudulent Mediums Act has been repealed and not replaced with a framework recognising spiritualistic practices. This is not to detract from the quality of discussion of each area of doctrine chosen, but it does reduce the power of the chapter to contribute to the overall thesis of the text.
At times, given the detail of the discussion of doctrine, and the range of topics covered, the reader is in danger of losing the central concern of the text, which is to elucidate constitutional principles concerning organized religions through systematic discussion of legal doctrine. The final part of the text (chapter 11), returns to this topic. In a very strong drawing out of principles from sections of the detailed discussion which preceded it, Professor Rivers considers the competing claims of individual rights, establishment and secularism for the status of such a principle. The discussion of the last is perhaps too quickly reductive, with a smooth shift from secularism-as-indifference through freedom of religion as purely the freedom to believe, to a concern that “this development easily makes unholy alliances with the modern interest in ‘spirituality’ over organized forms of religion” (p. 332). He then moves to consider alternate principles, drawn from the ECHR, of neutrality and autonomy.
Overall this is an outstanding text, which combines a concern for overarching principle with scholarly, and clear, discussion of areas of legal doctrine.
