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Published online by Cambridge University Press: 08 April 2014
This article considers the treatment of religious purposes in charity law from a liberal perspective informed by the work of the political philosopher Joseph Raz. The article begins by describing briefly the main ideas in Razian liberalism. It then considers the key question when thinking from a Razian perspective about the treatment of religious purposes in charity law: To what extent does the state's promotion of religious purposes via charity law promote the conditions of autonomy? Finally, the article considers the practical reasoning of state officials who deliberate about religious purposes in the charity law setting, asking to what extent such reasoning meets an ideal of public reason informed by Razian liberalism. The article concludes that in many, but not all, respects the treatment of religious purposes in charity law is consistent with Razian liberal commitments.
* Further exploration of the philosophical ideas in this article may be found in Harding, Matthew, Charity Law and the Liberal State (Cambridge: Cambridge University Press, forthcoming 2014)CrossRefGoogle Scholar.
1 See, e.g., Comm'rs for Special Purposes of Income Tax v. Pemsel, [1891] A.C. 531 (H.L.) at 583 (Lord Macnaghten) (U.K.); Charities Act, 2011, c. 1, § 3(1)(c) (Eng. & Wales).
2 See Harding, Matthew, “Trusts for Religious Purposes and the Question of Public Benefit,” Modern Law Review 71 (2008): 159CrossRefGoogle Scholar.
3 For fuller discussion, see Harding, Matthew, “What is the Point of Charity Law?,” in Private Law: Key Encounters with Public Law, eds. Jensen, Darryn and Barker, Kit (Cambridge: Cambridge University Press, 2013)Google Scholar.
4 Locke, John, “A Letter Concerning Toleration,” in A Letter Concerning Toleration and Other Writings, ed. Goldie, Mark (Indianapolis: Liberty Fund, 2010), 1Google Scholar.
5 ln, The Morality of Freedom (Oxford: Clarendon Press, 1986)Google Scholar; Raz, Joseph, “Autonomy, Toleration and the Harm Principle,” in Issues in Contemporary Legal Philosophy: The Influence of HLA Hart, ed. Gavison, Ruth (Oxford: Clarendon Press, 1987), 313Google Scholar; Raz, Joseph, “Facing Up: A Reply,” Southern California Law Review 62 (1989): 1153Google Scholar.
6 For a more precise description of perfectionism in political philosophy, see Wall, Steven, Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press, 1998), 8CrossRefGoogle Scholar.
7 Raz, The Morality of Freedom, 204, 369.
8 Raz, “Autonomy, Toleration and the Harm Principle,” 323; Macedo, Stephen, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1990), 204Google Scholar.
9 Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism, 204.
10 Waldron, Jeremy, “Autonomy and Perfectionism in Raz's Morality of Freedom,” Southern California Law Review 62 (1989): 1097, 1110Google Scholar.
11 Raz, The Morality of Freedom, 204.
12 Ibid., 369.
13 Ibid.
14 In what follows, when I refer to autonomy I mean “personal autonomy” as understood by Raz.
15 Ibid., 204.
16 Ibid., 372–73; Raz, “Autonomy, Toleration and the Harm Principle,” 323–24.
17 Raz, The Morality of Freedom, 148–57, 205; Raz, “Autonomy, Toleration and the Harm Principle,” 323–24.
18 Raz, The Morality of Freedom, 378.
19 Ibid., 372; Raz, “Autonomy, Toleration and the Harm Principle,” 324.
20 Raz, The Morality of Freedom, 410–11.
21 Ibid., 372.
22 Ibid., 155, 205, 373–74 (“The Man in the Pit” and “The Hounded Woman”). For the argument that some forms of hardship deny people even negative liberty, see Waldron, Jeremy, “Homelessness and the Issue of Freedom,” in Liberal Rights: Collected Papers 1981–1991 (Cambridge: Cambridge University Press, 1993), 309Google Scholar; Cohen, G. A., “Freedom and Money,” in On the Currency of Egalitarian Justice and Other Essays in Political Philosophy (Princeton, NJ: Princeton University Press, 2011), 166CrossRefGoogle Scholar.
23 Raz, The Morality of Freedom, 381.
24 Ibid., 375.
25 Ibid., chap. 12.
26 Ibid., 407–08.
27 Ibid., 407–08, 416, 417–18.
28 One set of constraints, which I will not pursue further here, arises because of the limits of state authority. For Raz's account, see ibid., chaps. 2–4; Raz, Joseph, “The Problem of Authority: Revisiting the Service Conception,” Minnesota Law Review 90 (2006): 1003Google Scholar.
29 Mill, John Stuart, On Liberty (London: Longmans, Green & Co., 1865)Google Scholar, 6.
30 Raz, The Morality of Freedom, 412–24.
31 Ibid., 415–17.
32 Ibid.
33 Rawls, John, Political Liberalism, paperback ed. (New York: Columbia University Press, 1996)Google Scholar; Rawls, John, “The Idea of Public Reason Revisited,” in The Law of Peoples: with “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999)Google Scholar.
34 See, e.g., Sandel, Michael J., “Religious Liberty—Freedom of Conscience or Freedom of Choice?,” Utah Law Review (1989): 597Google Scholar; Sandel, Michael J., Democracy's Discontent: America in Search of a Public Philosophy (Cambridge, MA: Belknap Press, 1996), 65–71Google Scholar; Ahdar, Rex and Leigh, Ian, Religious Freedom in the Liberal State (Oxford University Press, 2005), 60–61CrossRefGoogle Scholar; Bedi, Sonu, “Debate: What Is So Special About Religion?,” The Journal of Political Philosophy 15 (2007): 235CrossRefGoogle Scholar.
35 Note Greenawalt, Kent, Religious Conviction and Political Choice (New York: Oxford University Press, 1988), 21Google Scholar, in which Greenawalt distinguishes between liberal and non-liberal religion. For a description of the trend toward individualism in matters of religion in the United States, see Koppelman, Andrew, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013), 38–39Google Scholar.
36 See Nussbaum, Martha C., Liberty of Conscience: In Defense of America's Tradition of Religious Equality (Cambridge, MA: Belknap Press, 2008), 58, 215–16, 276Google Scholar. See also the discussion of the Second Vatican Council's 1965 Declaration on Religious Liberty (“Dignitatis Humanae”) in Finnis, John, “Religion and Public Life in Pluralist Society,” in Religion and Public Reasons: Collected Essays: Volume V (Oxford University Press, 2011), 42, 49Google Scholar, emphasizing the importance “for each human being to seek, find and live according to the truth about God and man.”
37 An-Na'im, Abdullahi Ahmed, Islam and the Secular State: Negotiating the Future of Sharia (Cambridge, MA: Harvard University Press, 2008), 1CrossRefGoogle Scholar.
38 Although this sense of freedom in choosing the amount to give to the church may be observed in many Christian churches today, it is not a necessary characteristic of Christian giving to the church; indeed, the payment of a traditional tithe reflects an understanding of such giving that regards the amount of the gift not to be a matter of free choice.
39 Sandel, “Religious Liberty,” 615; Finnis, John, “Religion and State,” in Religion and Public Reasons: Collected Essays: Volume V (Oxford: Oxford University Press, 2011), 80, 86–87Google Scholar.
40 Raz, Joseph, The Practice of Value, ed. Wallace, R. Jay (Oxford: Oxford University Press, 2003), 36Google Scholar. See also Waldron, “Autonomy and Perfectionism in Raz's Morality of Freedom,” 1128–29, discussing the “aspiration to value” that is implicit in autonomous choices.
41 See also Sher, George, “Autonomy and Neutrality (1),” chap. 3 in Beyond Neutrality: Perfectionism and Politics (Cambridge: Cambridge University Press, 1997)CrossRefGoogle Scholar.
42 See Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism, 220, 225; Sher, “Autonomy and Neutrality (1),” chap. 3 in Beyond Neutrality: Perfectionism and Politics.
43 See Raz, The Morality of Freedom, 269, which distinguishes between “willingly endorsed pursuits” and “free choice of goals and relations.”
44 Sometimes it is not clear whether or not a purpose relates to the maintenance and promotion of religious beliefs or practices. In charity law, such cases turn on whether or not a purpose “advances” religion. See, e.g., Roman Catholic Archbishop of Melbourne v. Lawlor (1934) 51 CLR 1 (High Court) (Austl.); Liberty Trust v. Charity Comm'n [2011] 3 NZLR 68 (HC) (N.Z.).
45 Macklem, Timothy, “Faith as a Secular Value,” McGill Law Journal 45 (2000): 1Google Scholar. For present purposes, I do not want to make too much of Macklem's observation about the uniqueness of faith; my aim here is not to define religion but rather to point to some of the private goods that religion is likely to realize. I will return below at Part 3 to the question of the definition of religion.
46 Andrew Koppelman (following Charles Taylor) describes religion as a “hypergood” that enables the weighing and assessing of other goods. Koppelman, Andrew, “Is It Fair to Give Religion Special Treatment?,” University of Illinois Law Review (2006): 571, 593–94Google Scholar.
47 Durkheim, Emile, The Elementary Forms of Religious Life (New York: Free Press, 1995), 44Google Scholar (emphasizing the communal dimension of religion, going so far as to say that “religion must be an eminently collective thing”). We need not agree with Durkheim that the concept of religion depends on community in order to appreciate that the value of religion often inheres in community.
48 Note that this latter option is only available where there is an autonomy-promoting public culture.
49 See Devlin, Patrick, The Enforcement of Morals (Oxford: Oxford University Press, 1965)Google Scholar; Gleeson, Murray, “The Relevance of Religion,” Australian Law Journal 75 (2001): 93Google Scholar; Matthew Turnour, “Beyond Charity: Outlines of a Jurisprudence for Civil Society” (PhD Thesis, Queensland University of Technology, 2009), 335–41.
50 See the comments of Lord Scott in Gallagher v. Church of Jesus Christ of Latter-Day Saints, [2008] UKHL 56, [43]—[52] (appeal taken from Eng.) (U.K.).
51 See Hart, HLA, Law, Liberty and Morality (Oxford: Oxford University Press, 1963)Google Scholar.
52 For a recent judicial endorsement of the public good of religious diversity in a constitutional setting, see S.L. v. Commission scolaire des Chênes, [2012] 1 S.C.R. 235 (Can. S.C.C.).
53 This is not to say that familiarity with religious difference is a necessary condition of the development of attitudes like empathy, trust, and respect. It is to make the more subtle point that familiarity with religious difference helps to bring about conditions under which such attitudes may be developed and cultivated in dealings with those whose religious or nonreligious beliefs and practices differ from one's own. In a society characterized by religious diversity, the development and cultivation of empathy, trust, and respect in such dealings is of obvious importance.
54 Cocks v. Manners, (1871) 12 L.R.Eq. 574 (Sir John Wickens V.C.) (Eng.); Gleeson v. Phelan (1914) 15 SR (NSW) 30 (Harvey J.) (Austl.); Gilmour v. Coats, [1949] A.C. 426 (H.L.) (appeal taken from Eng.) (U.K.); Leahy v. Attorney-General for New South Wales [1959] 101 CLR 611 (P.C.) (Austl.).
55 Good examples, drawn from United States constitutional law, are: Wisconsin v. Yoder, 406 U.S. 205 (1972); Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987). For a discussion of the latter case, emphasizing the importance of education to the maintenance of public goods in a liberal society, see Nussbaum, Liberty of Conscience, 327–34. Nussbaum's preferred liberalism does not appeal to the value of autonomy, see Nussbaum, Martha, “Perfectionist Liberalism and Political Liberalism,” Philosophy and Public Affairs 39 (2011): 3CrossRefGoogle Scholar, but here her thinking comes close to Raz's liberal conception of the good.
56 See the discussion in Greenawalt, Kent, “Freedom of Association and Religious Association,” in Freedom of Association, ed. Gutmann, Amy (Princeton, NJ: Princeton University Press, 1998), 109, 127–29, 132–36Google Scholar.
57 See Feinberg, Joel, “The Child's Right to an Open Future,” in Whose Child? Children's Rights, Parental Authority and State Power, eds. Aiken, William and LaFollette, Hugh (Totawa, NJ: Rowman and Littlefield, 1980), 124Google Scholar.
58 See generally Nehushtan, Yossi, “Secular and Religious Conscientious Exemptions: Between Tolerance and Equality,” in Law and Religion in Theoretical and Historical Context, eds. Cane, Peter, Evans, Carolyn, and Robinson, Zoë (Cambridge: Cambridge University Press, 2008), 243Google Scholar.
59 For the view that secularism is not synonymous with hostility to religion, see Taylor, Charles, “What Does Secularism Mean?,” in Dilemmas and Connections (Cambridge, MA: Belknap Press, 2011), 303Google Scholar.
60 See generally Blackford, Russell, Freedom of Religion and the Secular State (Chichester, UK: Wiley-Blackwell, 2012)CrossRefGoogle Scholar.
61 See Raz, The Morality of Freedom, 423–24; Raz, Joseph, “Multiculturalism: A Liberal Perspective,” in Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), 170, 182–83Google Scholar.
62 See generally Jones, Gareth, History of the Law of Charity 1532–1827 (Cambridge: Cambridge University Press, 1969)CrossRefGoogle Scholar.
63 A-G v. Baxter, (1684) 1 Vern. 248 (Ch.) (Sir Francis North) (Eng.); Da Costa v. Da Paz, (1754) 1 Dick. 259 (Ch.) (Lord Hardwicke L.C.) (Eng.); Cary v. Abbot, (1802) 7 Ves. Jun. 490 (Ch.) (Sir William Grant M.R.) (Eng.).
64 Mitford v. Reynolds, [1842] All E.R. Rep. 331 (EWHC (Ch)) 336 (Lord Lyndhurst L.C.) (Eng.).
65 For Jews and Protestants (but not Roman Catholics), this injunction forms part of the second of the Ten Commandments.
66 Ontario Law Reform Commission, Report on the Law of Charities (1996), 1:200–01.
67 The report relied heavily on the work of John Finnis, a Roman Catholic philosopher in the natural law tradition.
68 A-G v. Hughes, (1689) 2 Vern. 105 (Ch.) (Eng.); A-G v. Hickman, (1732) 2 Eq. Cas. Abr. 193 (Lord King) (Eng.).
69 West v. Shuttleworth, (1835) 2 My. & K. 684 (Ch.) (Pepys M.R.) (Eng.); Heath v. Chapman, (1854) 2 Drew. 416 (Kindersley V.C.) (Eng.).
70 Bourne v. Keane, [1919] A.C. 815 (H.L.) (U.K.).
71 In re Caus, Lindeboom v. Camille, [1934] 1 Ch. 162 (Luxmoore J.) (Eng.) (regarding deference); In re Hetherington (deceased), [1990] 1 Ch. 1 (Sir Nicolas Browne-Wilkinson V.C.) (Eng.) (regarding secular goods).
72 Thorton v. Howe, (1862) 31 Beav. 14; 52 Eng. Rep. 1042 (Sir John Romilly M.R.) (Eng.).
73 Ibid., 18.
74 Ibid., 19–20. It is sometimes suggested that Thornton provides no reason for liberal celebration after all, because the effect of finding the trust in that case charitable was to render it void under the Mortmain Act of 1736. However, there are reasons to doubt that this is an appropriate response to the decision. See Ridge, Pauline, “Legal Neutrality, Public Benefit and Religious Charitable Purposes: Making Sense of Thornton v. Howe,” Journal of Legal History 31 (2010): 177CrossRefGoogle Scholar.
75 Gilmour v. Coats, [1949] A.C. 426 (H.L.) (appeal taken from Eng.) (U.K.).
76 Ibid., 446–47, 449 (Lord Simonds), 450–54 (Lord du Parcq), 454 (Lord Normand), 454 (Lord Morton of Henryton), 454–62 (Lord Reid).
77 Importantly, the House of Lords did not reject the argument, either; rather, their Lordships remained agnostic on the question of the efficacy of intercessory prayer. For a clear expression of this agnosticism, see ibid., 446 (Lord Simonds).
78 O'Hanlon v. Logue, [1906] 1 I.R. 247 (Ir.); Att'y Gen. v. Becher, [1910] 2 I.R. 251 (K.B.) (Ir.); Charities Act 2009 (Act No. 6(3)/2009) (Ir.); Nelan v. Downes (1917) 23 CLR 546 (Austl.). See also In re Caus, Lindeboom v. Camille, [1934] 1 Ch. 162 (Luxmoore J.) (Eng.), a pre-Gilmour case from England.
79 See Nat'l Anti-Vivisection Soc'y v. Inland Revenue Commissioners, [1948] A.C. 31 (H.L.) (U.K.).
80 O'Hanlon v. Logue, [1906] 1 I.R. 247, 249 (Ir.). The judgment of Palles C.B. is more often quoted, but its commitment to secularism is less clear.
81 Ibid.
82 For a description and defense of state recognition of a general connection between religious purposes and goods of various sorts in the American constitutional setting, see Koppelman, Defending American Religious Neutrality.
83 Att'y Gen. v. Becher, [1910] 2 I.R. 251, 267–68 (K.B.) (Gibson J.) (Ir.); Neville Estates Ltd. v. Madden, [1962] 1 Ch. 832, 853 (Cross J.) (Eng.).
84 Crowther v. Brophy [1992] 2 VR 97, 100 (Gobbo J.) (Austl.).
85 Thornton v. Howe, (1862) 31 Beav. 14, 19–20; 52 ER 1042 (Sir John Romilly MR) (Eng.); see also Re Watson (deceased), Hobbs v. Smith, [1973] 3 All. E.R. 678 (Plowman J.) (Eng.).
86 Neville Estates Ltd. v. Madden, [1962] 1 Ch. 832, 853 (Cross J.) (Eng.).
87 Ibid., 853. A general link between private religious purposes and public goods was also alluded to by Chitty J. in Re Joy, (1889) 60 LTR 175, but the purpose in Re Joy—“united prayer”—was found not to be charitable for other reasons.
88 Joyce v. Ashfield Mun. Council [1975] 1 NSWLR 744, 751–52 (NSW Court of Appeal) (Hutley JA) (Austl.).
89 Att'y Gen. v. Becher, [1910] 2 I.R. 251, 267–68 (K.B.) (Gibson J.) (Ir.).
90 Gilmour v. Coats, [1949] A.C. 426 (Lord Simonds) (H.L.) 446 (appeal taken from Eng.) (U.K.).
91 Ibid., 448–49 (Lord Simonds), 462 (Lord Reid). Note that the reasoning of the House of Lords on this point appears to be inconsistent with the proposition, uncontroversial in other areas of charity law, that a purpose may be of public benefit where it entails the provision of private goods in circumstances that render those goods sufficiently available to the public. See Ford, Patrick J., “Public Benefit Versus Charity: A Scottish Perspective,” in Foundations of Charity, eds. Mitchell, Charles and Moody, Susan R. (Oxford: Hart Publishing, 2000), 205, 240Google Scholar.
92 For similar thoughts, see Macklem, “Faith as a Secular Value,” 48–50.
93 Charity Commission for England and Wales, Decision of the Charity Commissioners for England and Wales, Application for Registration as a Charity by the Church of Scientology (November 17, 1999), 41–42.
94 It is not obvious how spiritual edification contributes to the conditions of autonomy, nor is it obvious how enabling women to become Carmelite nuns promotes autonomy, given that being a Carmelite nun entails living non-autonomously. See Gilmour v. Coats, [1949] A.C. 426 (H.L.) 428–29 (appeal taken from Eng.) (U.K.), for a description of Carmelite practices.
95 Thornton v. Howe, (1862) 31 Beav. 14, 20; 52 Eng. Rep. 1042 (Sir John Romilly M.R.) (Eng.).
96 The Times (London), February 12, 1981, 8.
97 In this regard, the decision of the Charity Commission for England and Wales in Preston Down Trust has something to commend it: Charity Commission for England and Wales, Decision of the Charity Commission for England and Wales, Application for Registration of the Preston Down Trust (January 3, 2014).
98 For an argument for such a broader category, but not from a Razian perspective, see Woodfield, Steve T., “Doing God's Work: Is Religion Always Charitable?,” Auckland University Law Review 8 (1996): 25, 41–42Google Scholar. See also, at a greater level of generality, Cornelissen, Gemma, “Belief-Based Exemptions: Are Religious Beliefs Special?,” Ratio Juris 25 (2012): 85CrossRefGoogle Scholar.
99 See In re Price, [1943] 1 Ch. 422, 433 (Cohen J.) (Eng.), 433; Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970). Such a view may also be implied by §§ 2(c) and 3(f) of Scotland's Charities and Trustee Investment Act of 2005.
100 Neville Estates Ltd. v. Madden, [1962] 1 Ch. 832, 853 (Cross J.) (Eng.); see also Att'y Gen. v. Becher, [1910] 2 IR 251 (K.B.), 267–68 (Gibson J.) (Ir.).
101 In re South Place Ethical Soc'y, [1980] 1 W.L.R. 1565 (Dillon J.) (Eng.).
102 Ibid., 1571–72. But see Decision of the Charity Commissioners for England and Wales, Application for Registration as a Charity by the Church of Scientology (England and Wales) (November 17, 1999), in which the purposes of the Church of Scientology were found to be neither within the description “advancement of religion” nor within the applicable “catch-all” description.
103 Macklem, “Faith as a Secular Value.”
104 In re South Place Ethical Soc'y, [1980] 1 W.L.R. 1565, 1573 (Dillon J.) (Eng.). See also Church of the New Faith v. Commissioner for Pay-Roll Tax (Victoria) (1983) 154 CLR 120 (Austl.) and R (on the application of Hodkin) v. Registrar General of Births, Deaths and Marriages, [2013] UKSC 77 (U.K.), for the difficulties in defining religion.
105 At times, decision makers merge the question of the definition of religion with the question of the justification of treating religion differently in law from analogous secular beliefs and practices, with arguably regrettable consequences for the definition of religion. See Torcaso v. Watkins, 367 U.S. 488 (1961); U.S. v. Seeger, 380 U.S. 163 (1965); Welsh v. U.S., 398 U.S. 333 (1970); Wisconsin v. Yoder, 406 U.S. 205 (1972).
106 See McConnell, Michael W., “The Problem of Singling Out Religion,” DePaul Law Review 50 (2000): 1, 44Google Scholar. Note also Koppelman, “Why Single Out Religion,” chap. 4 in Defending American Religious Neutrality, 124 (arguing that religion denotes a “cluster of goods”).
107 According to Raz, where the state withdraws options or makes new options available, it must do so conservatively, paying due regard to citizens' expectations. See Raz, The Morality of Freedom, 425. These points apply also to circumstances in which the state reconstitutes options by changing the terms in which they are given public expression.
108 See Koppelman, “Is It Fair to Give Religion Special Treatment?,” 597 (“All one needs to say, in order to justify distinctive treatment of religion, is that religion is a category that may be relevant to legitimate legislative purposes.”).