There is an age old saying that religion is one of those things you should never discuss in polite company. Whether or not the world inhabited by legal academics counts as “polite company”, this warning was never much of an issue. Religion was of little interest to lawyers. In the last few years, however, there has been a remarkable transformation. There are European research projects, major international conferences and a raft of new books and journals. Religion, and its place within law, has become a hot topic. My interest in religion and law grew out of particular areas. I am a family lawyer and questions of religion often arise in families: church or registry office, “mixed” marriages, bringing up children in one faith or none? In employment law too, religion can be an issue. Do ministers owe a contractual obligation to their worldly employer or a spiritual one to their God? How to protect against unlawful discrimination between Protestant and Catholic? How to accommodate religious observance or religious dress in the workplace?
Recently I have taken a much broader approach: investigating the current state of Scots law in terms of how it acknowledges, protects, regulates and possibly even privileges religion. Working with historians and funded by Humanist Society Scotland, this was an exciting opportunity - the first comprehensive review of religion in Scots law probably since Victorian times: covering areas as diverse as the establishment of the Church of Scotland, charities, tax and education.
We called our project A Religious Audit because our objective was to present an accurate account of the current state of Scots law. Perhaps terms borrowed from surveying or archaeology would have been more appropriate because what we did was to map the contemporary legal landscape and, in places, to dig deep in order to trace change. How, for example, had the law of marriage changed from pre-Reformation days of Canon law and church courts to its present secular legal state and what, if any, vestiges remained of that old religious model?
A key distinction emerged in our research between “old style” religion and “new.” If we think of “old style” religion, it is the religion or religious doctrine of a single institution. Pre-Reformation, religion was central to Scots law through the canon law of the Roman Catholic Church, whilst post-Reformation it has been presbyterianism, most obviously the Church of Scotland. If we think of religion in these terms then the legal pattern is quite clearly decline. There are remnants of previous privilege, for example, in education law and the ceremonial role of the Church of Scotland but these remnants are few. In current statute law, there is relatively little evidence of the protection or privileging of one single religious doctrine or institution within Scots law.
While this old time religion is quite clearly in decline, there is, however, a new religious presence: the religion of individual human rights, of diversity and of equality. Here the direction of travel is towards increased presence. In recent decades, new rights for individuals have been introduced; designed to ensure that their beliefs are respected and protected. The human rights agenda is one of the most significant to have emerged in modern Scots law, much of it the result of protection of human rights on global and European levels. In that context, not only is there legal protection of individual rights to believe or not to believe but also considerable potential for difficult encounters between religious rights and other protected characteristics of gender, race and sexual identity. In a Scottish society committed to diversity and inclusion, there may be challenging accommodations yet to be worked out.
Religion will always be a difficult topic to discuss and perhaps even more so when the research behind the discussion was funded by Humanist Society Scotland (HSS). Some may see that as a threat, some as a calculated political strategy, some as undermining the value of the research. Purely from a legal perspective, it seems entirely apt because one of the most striking legal shifts to emerge from our research relates to legal definition and meaning: where legal provisions once referred to “religion” they now refer to “religion or belief”. If Scots law is to remain appropriate for a diverse Scottish society we need to keep discussing and reflecting on the place within its rules of beliefs, whether religious or not.
~ Jane Mair
Jane Mair is Professor of Private Law in the School of Law, University of Glasgow. The full report has been published by HSS at Religion in Scots Law: Report of an Audit
This article was first published in The Scotsman.