The present form of church establishment in England represents no more than the eroded residue of the original confessional state. The presence of non-Christian religions and the significant decline in Christian belief and observance call into question the validity of the remaining elements of establishment, though not necessarily a national mission. It is argued that, rather than wait passively on events that themselves may – carelessly – force uncomfortable outcomes, it would be better for the Church of England itself to consider its future policy and practice as a national church, should it wish to retain that role. Apparently declining to consider any unforced change, the Church shows a tendency to aimless drifting that makes it rudderless and vulnerable. Some examples of where it might constitutionally take initiatives are discussed. However, the position and behaviour of bishops in the House of Lords exemplifies a tendency to hold on, however untenably, to what it has without thinking through the implications of the politics of its situation. Now that the Church is, in practice, in charge of its own destiny, it should face up to the responsibility that its changed status implies.1

Most recent historians have expressed a negative opinion of the quality of legal education at the English universities between 1400 and 1650. The academic study of law at Oxford and Cambridge, they have stated, was easy, antiquated and impractical. The curriculum had not changed from the form it assumed in the thirteenth century, and it did little to prepare students for their careers. This article challenges that opinion by examining the inner nature of the ius commune, the law that was applied in the courts of the church, and also by examining some of the works of practice compiled by English civilians during the period. Those works show that the negative opinion rests in part upon a misunderstanding of the nature of legal practice during earlier centuries. In fact, concentration on the texts of the Roman and canon laws, as old-fashioned as it seems to us, was well suited for the tasks advocates and judges would face once they left the academy. It also provided the stimulus needed for advance in the law of the church itself; their legal education made available to potential advocates and judges skills that would permit a sophisticated application of the ius commune, one better suited to their times. The article provides evidence of how this happened.1

Amongst the subjects discussed by the theologians of ARCIC, canon law has been conspicuously absent. The ecclesiology of koinonia, which is central to the work of ARCIC, has been of the greatest importance in ‘re-imagining’ the Church and so promoting ecumenism. It has faced received canon law with new questions: to what extent can canon law facilitate those structures and practices which undergird the ecumenical initiatives promoted by koinonia ecclesiology? Already, canon law provides for shared institutions and chaplaincies to institutions. Test areas for future ecumenical convergence include the reception of a member of one tradition by the other, ethics and suitability for ministry. The proposed Anglican covenant presents a challenge to the canon law of member churches within the Anglican Communion and may present a model for future ecumenical convergence. The work of canon lawyers in developing this and other new models for ecumenism is indispensable to a deeper and more extensive koinonia amongst the churches.

One of the main goals of the Second Vatican Council (the 50th anniversary of whose opening will be celebrated in 2012) was the unity of all Christians. Not least among its achievements was the fact that it launched the Catholic Church into the Ecumenical Movement and also paved the way for a global revision of the Church's Code of Canon Law. This article reflects from a Roman Catholic perspective on aspects to do with canon law and ecumenism. It does so in the light of the Council's teaching and reception. Conciliar hermeneutics and questions left open at the Council are considered. In conclusion, the author suggests that greater attention to the Church's charismatic principle and missionary mandate underlined at the Council offers wide scope for continuing exploration among Anglican and Roman Catholic canonists in the cause of unity.

In this article it is argued that individual sincerity has become the most significant determinant of whether or not a religious or philosophical belief is to be recognised as such for the purposes of accessing putative legal protections for individuals. However, a clear test of individual sincerity has not been fully articulated by the courts in the UK or indeed elsewhere. In this context, the possibility of developing a test based in large part on consistency of individual behaviour is considered in this article, and some objections noted. The article concludes that such a test is both useful and desirable in principle, and should be developed; however, it must be applied with great care in order to remain inclusive of those who may be driven to apparent inconsistency by fear or as a result of other factors.

Must the state be neutral to all religious and philosophical positions? This article argues that that is an impossibility and that the most basic principles of our democratic society, such as our belief in the importance of individual freedom and equality, are Christian in origin and need their Christian roots. The relevance of recent judgments in the European Court of Human Rights and in English courts is discussed. In particular, exception is taken to views of religious belief that see it as subjective, irrational and arbitrary. It is argued that religion needs to take its place in the public arena, and that the national recognition of the Church of England through establishment is an important means to that end.1

In March 2011, the Grand Chamber of the European Court of Human Rights reversed the decision of the Court's Second Section in Lautsi v Italy. The case clearly demonstrates how controversial the use of religious symbols in the public environment has become. This article sets out the complicated framework of the case, assesses the judgment and concludes that the Grand Chamber's decision is unfortunate and, in many respects, objectionable. It will be shown that this decision has implications regarding the malleable nature of the doctrines of the margin of appreciation and consensus, as well as the development of Strasbourg's application of double standards in its case law regarding the public display of religious symbols.

The first decade of the 21st century has witnessed a number of controversies surrounding the interaction between law and religion in the United Kingdom. In particular, tensions have emerged between laws protecting religious freedom and those which prohibit discrimination on grounds of sexual orientation. In particular, Parliament has repeatedly examined the scope and ambit of exceptions afforded to religious groups which allow them to discriminate on grounds of sexual orientation when specific conditions are met. And these exceptions have reportedly led to tensions within both the Blair and Brown cabinets and rebukes from the Vatican and the European Commission, criticising the exceptions for being too narrow and too broad respectively. The exceptions have also been challenged by way of judicial review, have been applied or commented upon in a number of high-profile cases and have attracted comment in the print and broadcast media. A number of employees have brought claims asserting that new legal requirements promoting equality on grounds of sexual orientation are incompatible with their religious beliefs. This article seeks to explore the legal changes that have occurred in the first decade of the 21st century affecting religion and sexual orientation with particular reference to how courts and tribunals have dealt with clashes between the two. It discusses the extent to which English law allows religious groups and individuals to follow their own beliefs regarding human sexuality.

This article distinguishes three different conceptions of the relationship between religion and the public sphere. The reconciliation of these different aspects of freedom of religion can be seen to give rise to considerable difficulties in practice, and the legal and political systems of several Western European countries are struggling to cope. Four recurring issues that arise in this context are identified and considered: what is a ‘religion’ and what are ‘religious’ beliefs and practices for the purposes of the protection of ‘freedom of religion’, together with the closely related issue of who decides these questions; what justification there is for a provision guaranteeing freedom of religion at all; which manifestations of religious association are so unacceptable as to take the association outside the protection of freedom of religion altogether; and what weight should be given to freedom of religion when this freedom stands opposed to other values. It is argued that the scope and meaning of human rights in this context is anything but settled and that this gives an opportunity to those who support a role for religion in public life to intervene.

Religious product authentication laws, predicated on conceptions of doctrinal authenticity, risk curtailing the religious freedom of dissenting adherents engaged in non-orthodox forms of the regulated practice. They may also entail discrimination between, or even the ‘establishment’ of, competing doctrinal viewpoints within religions. This raises important constitutional and theoretical questions surrounding the conceptual necessity, to religious freedom, of state neutrality in religious controversies. Comparative church–state jurisprudence reveals strikingly different approaches to the question of the compatibility of religious product authentication laws with constitutional guarantees of religious freedom and state neutrality. The religion clauses of the United States Constitution preclude regulatory schemes incorporating doctrinal concepts of authenticity, whereas a failed constitutional challenge in Ireland (to a law regulating the sale of Mass cards in Ireland) rejected the contention that such laws denied constitutional guarantees of religious freedom and non-discrimination on religious grounds. This article argues that these contrasting approaches to the constitutionality of religious product authentication laws illustrate a deeper conflict surrounding the very concept of religious freedom. In particular, this comparative constitutional jurisprudence crystallises broader normative debates surrounding the competing claims of recognition and neutrality with regard to religion.

The Marriage (Wales) Act 2010 illustrates that a disestablished church will always occupy an intermediate position between an established church and one which has never been established: the Church in Wales needed an Act to reform its marriage law, whereas paradoxically the Church of England legislated for itself by Measure. The article outlines how the provisions on marriage evolved during the passage of the disestablishment legislation; accepts the validity of contemporaneous arguments based on inconsistency; and outlines previous occasions when the marriage laws of England and of Wales have fallen out of step. It concludes by accepting that the continued establishment of the marriage law in Wales is inconsistent, but that any change is likely to depend on a wholesale reform of marriage law.

Religious offences in Italy, as in many European countries, have a long and complex history that is intertwined with the events in the history of the relationship between church and state and the institutional and constitutional framework of a nation.

This article is divided into three parts. The first part aims to offer some historical remarks concerning the rules on the contempt of religion and blasphemy in Italian criminal law from the end of the 19th century to the present day. The second part focuses on changes to the law on vilification introduced in 2006 and the third part deals with the recent developments in blasphemy law in the context of sport.

The article shows that, on the one hand, reforms of the offences grouped under vilification of religion are anachronistic and do not stand up against the religious freedom of individuals, yet on the other, despite the traditional rules for the protection of religion being considered obsolete, they are applied in new areas of law, for example sport, and are used to curb bad manners and bad behaviour. The relationship between the new functions of these criminal rules and the traditional ones, however, remains uncertain and fluctuating, and reveals a moralistic approach to religious offences.

In recent years the application of, and discussion about, the faculty jurisdiction has come to focus largely on those aspects of the jurisdiction concerned with the making of changes to listed buildings. This Journal has recently carried two full-scale articles that have helpfully described, from a legal perspective and a practical one, respectively, the operation of the faculty jurisdiction within the context of listed buildings and the ecclesiastical exemption.

Churches, in common with other unincorporated associations, thrive on a healthy dynamic amongst their members whose energies and gifts, properly harnessed, can serve to promote mission and witness, to build up the community of faith and to evangelise with vigour and integrity. Not infrequently, however, in both aspiration and application, the conduct of believers (individually and corporately) can fall short of that paradigm and the result can be destructive and debilitating. This paper identifies and explores areas within the current structures of the Church of England where express provision already exists for a formal process of mediation or other Alternative Dispute Resolution (ADR), suggesting that greater use of mediation in the future would be beneficial to the Church of England functionally, spiritually and (not least) financially.1

Anyone hoping that the British Columbia Court of Appeal, in Bentley v Anglican Synod of the Diocese of New Westminster  would resolve the doctrinal and related property disputes in the Anglican Church of Canada (ACC) and even in the world-wide Anglican Communion over same-sex blessings must come away from the decision of Newbury JA for the unanimous court greatly disappointed: the court left the dispute exactly where it began – in the ACC. Conversely, anyone hoping that the court would do precisely that will be greatly relieved by this exercise of judicial self-restraint in the face of the many challenging theological and legal issues presented by the case. Stripped to its essentials, the court found that the property to which four former parishes in the diocese of New Westminster laid claim by way of a cy-près application was held by the diocese pursuant to a statutory trust for the uses of the diocese and the ACC. The court further characterised the dispute over same-sex blessings as an internal dispute among Anglicans on the basis of which a cy-près order cannot be made in favour of parishes which no longer regard the Bishop of New Westminster as their bishop. This simple, legal outcome followed an 11 day trial in the British Columbia Supreme Court, a four day appeal hearing, and two lengthy judgments, each of just under 100 pages, which ranged widely over the history of the dispute within the ACC and the larger Anglican Communion, and the Anglo-Canadian common law relating to the resolution of church property disputes since the 1813 decision of Lord Eldon in Craigdallie v Aikman, almost two centuries before.

This paper1 addresses the practical aspects of mediation. Experienced mediators will know what mediations look like and feel like and need no reminding how effective mediation has become as a means of resolving disputes. My own practice as a mediator – which tends to focus on inheritance and probate disputes, where the emotional element is often highly toxic – has some parallels with the mediation of Church disputes where an understanding of and sensitivity to theology is crucial.

The Equal Treatment Directive ‘respects and does not prejudice the status under national law of churches and religious associations or communities in the member states and … of philosophical and non-confessional organisations’ and empowers member states to make ‘specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity’. Specifically, Article 4 permits member states to make such provision taking account of their ‘constitutional provisions and principles, as well as the general principles of Community law’. Crucially, Article 4 concludes as follows: