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Secularisation or the Triumph of Equality over Religious Morality In/On the Jurisprudence in the United Kingdom

Info: 2592 words (10 pages) Law Essay
Published: 27th Nov 2020

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Preliminary titles:

Secularisation or the triumph of equality over religious morality in/on the Jurisprudence in the United Kingdom.

A justification for the research:

why is the topic interesting and worth researching?

Historically law and religion has been almost synonymous. In fact Amesbury and Sullivan (Introducing Law and Religion, p.1) note the similarities between the two, in terms of their normative and formative character, as well as the implied sacredness that they hold. However more recently, the later of the two has become more synonymous with controversy than anything else. (Human Rights and Religious Litigation - Faith in the Law, Cumper and Lewis, 2019, p.1)

In legal theory and practice the evolution of this relationship is of particular interest due to the vast influence of Biblical Texts on some of the oldest facets of English law. Hart, in the infamous Hart Devlin debate strongly argued  that the separation of morality and religion is almost impossible and so therefore is the separation of Christian morals and the law. This can be said to be true from the prescience of foundational legal principles such as Adultery, Homicide, Sabbath Desecration (to an extent) and more. However at the same time we also see in history the repeal of religious law and introduction of more secular legislation.

The topic has become more significant in this century and the last as we have seen a string of legislation that seems to both protect the individual from religious discrimination (such as inequality in marriage) as well as legislation in the form of the Human Rights Act (1998) which aims to enforce the right of religious freedom for the individual.

“[The] law must be stable, and yet it cannot stand still” (Pound, 1923) and the understanding of the basis of legal morality and jurisprudence in the United Kingdom is of utmost importance to understand the direction for future movement in this area. 

The purpose of this project/research is to examine the ongoing role of religion, specifically the Judeo-Christian belief system in the jurisprudence of the United Kingdom.  While there has been previous work to describe and analyse the similarities in UK law, jurisprudence and sociology with that of Religion and theology, there is a lack of modern research on the development in terms of division and realignment of the two ‘ology’s’ as well as the some-what contradictory nature of the evolution in law and religion/secularisation of law.

Scope of Research

This research presents a unique approach to the study of law and Religion. Although scholars have pointed out the similarities between the two, not much has been done to analyse the shifting dynamic, impact and importance of such a shift. In addition, little research has been done to separate what seems to be the abandonment of religious laws but not the abandonment of legal philosophies rooted in the Judeo-Christian belief system.

Rivers (The Secularisation of the British Constitution, 2012, p.5) notes that since the 1688 revolution, which came with it the abandonment of religious uniformity, the relationship between law and religion has continued to separate. Examples of this in legislation have been the abolition of the remaining Ecclesiastical Courts in 1860 (Ecclesiastical Courts Jurisdiction Act, 1860) and to date recent legislation in Marriage equality that has steered away from the traditional Christian concept of marriage.  All of which leave a strong implication that religion does not and should not have a significant role in law today.

Conversely, in The Influence of Biblical Texts Upon English Law, J. Gest notes that the law “has its origins in old local customs, the civil law, the canon law of the Church, the writings of philosophers and texts of scripture, interwoven with the accumulation of a thousand years of statutes and judicial decisions” (1910, p. 2).

With this arises a multitude of questions that this project will aim to answer, such as; If to date, religion has informed our morality and morality our jurisprudence then where does a pure secularisation of the law leave us? And can we truly ‘coin’ the law as secularised when we still have foundational principles derived from Biblical text such as Adultery, Sabbath Desecration, Theft and homicide present in our law? (Gest, 1910, p. 4) And if we have trulyabandoned religion in UK Jurisprudence is there another moral principle ready to take its place?

This project will be theoretically informed by the study of a variety of areas. Primarily the historical contextualisation of the relationship between Jurisprudence and religious morality and then with it the sociological and cultural influences that have impacted the relationship with the two until now.

The methodological approach for this project will be primarily the analysis of textual sources. Including primary sources such as case law and legislation, and secondary sources such as Journal Articles, Debates and reports.

Further research will be undertaken to identify the significance of morality in jurisprudence against other components and if this has changed over time. Alongside this further research into the impact of the Hart Devlin Debate and whether it argues for or against morality, and more specifically religious morality playing a part in jurisprudence.

Further research into current UK legislation and common law will be undertaken to evaluate whether jurisprudence is becoming more secularised. Additionally analysis on the introduction of equality into western legal theory will be completed, to see if there is indication of this supporting either the further secularisation or de-secularisation of legal theory in the UK. This will in turn incorporate an evaluation of EU regulations and legislation.

This project will aim to do the above from the view that jurisprudence is of critical importance to future legal development and reform. Therefore, the question on the significance of jurisprudence in UK law will not be presented, but rather this project will be presented from this point being implied.

Secondly, this project will focus on the Judeo-Christian belief system when referring to ‘religion’. However, primary sources such as legislation and common law that feature other religious backgrounds will still be used.

Additionally, due to the vastness of the topic area. This project will focus primarily on the relationship between religious morality and law and will not address the other ethical and philosophical explanations for morality. For similar reasons, this project will only look at equality and it’s intermediary relationship with law and religion and not the principle of equality in itself.

The skeleton of a table of contents

Title page
Summary/Abstract
Preface
Glossary of terms
List of abbreviations
Table of Contents
Introduction
Dissertation Chapters

  1. The Foundational Role of religion in UK Jurisprudence
  2. The Hart-Devlin Debate: A Shift In Legal Morality
  3. The European Union and the Triumph of Equality

Conclusion
Bibliography
Appendices

A time frame for completing your dissertation in time

DISSERTATION PART II

Bibliography:

Taylor, T.W. 1896. The Conception of Morality in Jurisprudence. The Philosophical Review. 5(1), pp. 36-50

This article explores the specific role or morality in jurisprudence. Taylor analyses the popular conception that law exists to promote and preserve morality and also the theories governing the differentiating factors between the two. This article helps propose a foundational purpose of morality and jurisprudence that underlies all the theories discussed in the article; to be sovereign. This work will help frame the research of the project in terms of what jurisprudence is and how morality is interwoven into it.

Gest, J. 1910 . The Influence of Biblical Texts upon English Law. University of Pennsylvania Law Review and American Law Register. 59(1), p.15.

Gest provides foundational insight on areas within English law and jurisprudence where religious elements are still present. He also notes aspects in Criminal Law, Civil Law and Equity where religious sentiment are still present in Legislation. He has strong arguments for the historical influence of the Bible upon English legal material, which he says is in part due to historical public opinion and the historical influence of the church upon the common law. This work will be crucial for the foundational review of the relationship between law and religion.

Rivers, J. 2012. The Secularisation of the British Constitution. Ecclesiastical Law Journal. 14(3), pp. 371-399

Rivers identifies the underlying themes common between law and religion. She notes the use of religion to underpin the development of principles of individual liberty and equality, but also argues that the law is “coming to treat religions as merely recreational and trivial” and therefore decreasing the significance of religion as a part of the legal system. This piece of work highlights the practical results of the secularisation of UK Law and also begins to address the role of equality as a new force.

Bunikowski, Dawid. 2015. Legal Protection of the Value of Public Morality: The Hart-Devlin Debate. SSRN Electronic Journal.

This work analyses the value of public morality and discusses whether morality should be the basis of our law. It looks into issues of how to ensure public morality and how to govern the morality of the majority in society. This work will provide useful insight on the relationship between morality and governance and provide a basis from which discussions on modern secularisation can begin.

McCutcheon, J.P. 2002. Morality and The Criminal Law: Reflections on Hart-Devlin. Criminal Law Quarterly. 47, pp. 15-38

McCutcheon explores the Hart-Devlin debate from a more generic view of how morality should be used in law, rather than sexual morality; which was the central topic of the Wolfenden Report that the debate was centred around. This article continues the discussion of the use of law to enforce a particular view of morality and also analyses Devlin’s view of the inextricable link between morality and religion. This article will be useful in contextualising the public opinion on religious based morality in the 20th century and now.

Chaplin, J. 2012. Law, Religion and Public Reasoning. Oxford Journal of Law and Religion. 1(2), pp. 319-337

This article addresses two key principles: the need for neutrality towards religion in law and the principle that public reasoning must be secular. This work will be useful in furthering the conversation on the role of morality in jurisprudence from a more recent point of view and also in analysing where secularisation of the law leaves us practically when it comes to UK jurisprudence.

SECTION II

  • Allegretti, J. 1998. A Religious Perspective on Legal Practice and Ethics. Fordham Law Review. 66(4), pp. 1101-1129
  • Amesbury, R. and Fallers Sullivan, W. (2019), Introducing Law and Religion. Religious Studies Review, 45: 151-151
  • Augsberg, I. 2018. Global Law Before the State? On Canon Law as a Transnational Regime. Journal of Law and Society, 45(S1), pp.S270-S286.
  • Burnside, J. 2012. The Spirit of Biblical Law. Oxford Journal of Law and Religion. 1(1), pp. 127-150.
  • Cumper, P. 2019. Human Rights and Religious Litigation - Faith in the Law. Oxford Journal of Law and Religion. 8(1), pp. 121-150.
  • Domingo, R. 2018. Body, Soul, and Spirit of the Law. Towards a Holistic Legal Paradigm. SSRN Electronic Journal, 7(2).
  • Domingo, R. 2019. Why Spirituality Matters for Law: An Explanation. Oxford Journal of Law and Religion, 8(2).
  • Freedman, M. 1998. Religion is Not Totally Irrelevant to Legal Ethics, 66 Fordham L. Rev. 1299 
  • Karpov, V. 2010. Desecularization: A Conceptual Framework, Journal of Church and State, Volume 52, Issue 2, Pages 232–270.
  • Skene, L, Parker, M. 2002. The Role of The Church in Developing The Law. Journal of Medical Ethics. 28(4),pp. 215-218.

SECTION III

  • Equality and Human Rights Commission. 2016. Religion or belief: is the law working, : Equality and Human Rights Commission.
  • Dent, C. 2017. Religion and the Early Modern Patent System, 1560–1660. Oxford Journal of Law and Religion. 6(3), pp. 580-599.
  • Foster, N. 2016. Freedom of Religion and Balancing Clauses in Discrimination Legislation, Oxford Journal of Law and Religion, 5(3), pp. 385–430,
  • Griffiths, E. 2016. The ‘reasonable accommodation’ of religion: Is this a better way of advancing equality in cases of religious discrimination?. International Journal of Discrimination and the Law, 16(2–3), pp. 161–176.
  • Hedlund, R. 2015. The Theological Foundations of Equity's Conscience. Oxford Journal of Law and Religion. 4(1), pp. 119-140.
  • Pearson, R. 2014 Religious objections to equality laws: reconciling religious freedom with gay rights. PhD thesis, The London School of Economics and Political Science (LSE).
  • Purdam K, Cheruvallil-Contractor S, Ghanea N, Weller P. 2017. Religious Organizations and the Impact of Human Rights and Equality Laws in England and Wales, Politics, Religion & Ideology, 18(1), pp. 73-88
  • Sandberg, R. 2006. To Equality and Beyond: Religious Discrimination and the Equality Act 2006, Ecclesiastical Law Journal. 8(39), p 470-474

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