In 2015 Magna Carta celebrated its 800th anniversary. The Great Charter has been widely heralded as a fount of many rights that are highly valued in British and American law. One right that people have identified in the Carta is that of religious freedom. Magna Carta contains two provisions guaranteeing freedom of the church from government authority. In 2013, the United States Supreme Court relied on that authority in a ruling that affirmed the principle of religious autonomy. This article argues that relying on the legacy of Magna Carta for the principle of religious freedom is tenuous: the document had little influence on the development of the First Amendment. Even Magna Carta's authority for the principle of church autonomy is overstated, as the Carta had nothing to do with the development of that principle in American law. Finally, judicial reliance on Magna Carta for the principle of religious freedom risks elevating protections for religious institutions over the interests of individuals. As a result, the legacy of Magna Carta for the principle of religious freedom is mixed, at best.

Legal theorists have long debated whether law originates from a single source (the actions of state officials) or from multiple sources (including the innumerable communities and associations that constitute broader civil society). In recent years, proponents have defended polycentrism—and its critics have tried to refute it—from various moral, economic, and historical angles. But no contemporary writer has examined polycentrism from a Christian perspective. In the absence of such a study heretofore, this article attempts to evaluate legal polycentrism from a Christian theological and jurisprudential perspective. The Christian scriptures and Christian theology do not directly address whether law is polycentric or monocentric. Nevertheless, appealing to a number of biblical-theological issues—including the image of God, the Noahic covenant (Genesis 8:21–9:17), wisdom, and the purpose of civil government—I argue that Christians have good reason to regard polycentrism as a more satisfactory view of law.

“CLS” was an acronym with two very different meanings when I was a fledgling law student some thirty-five years ago. For most, it meant “critical legal studies,” a burgeoning new movement of sundry neo-Marxist jurists and philosophers collectively bent on exposing the fallacies and false equalities of modern law. Many of my first-year law professors were the high priests of this CLS movement. They were making serious waves at the time with their denunciation of much that was considered sound and settled in the law. The best CLS professors taught black letter doctrine—and then shredded it with rhetorical and analytical power. That instruction appealed to my native ethic of semper reformanda—always reforming and working to improve our traditions. Other professors simply taught their pet critical topics, sending us students scrambling to the bookstore in search of study guides that would acquaint us with the legal basics. After a year of such CLS instruction, I could not wait to take the upper-level electives that would no doubt unveil the new and better legal system CLS had in mind. Little was on offer. The “crits,” I soon learned, were better at deconstruction than reconstruction of the law. Not surprisingly, this movement has now faded and fractured into sundry special interest groups.

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. The first section describes the “school choice” movement of the past fifty years, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. The second section argues that based on the current state of the law it should not be unconstitutional, under the First Amendment's Establishment Clause, for states to elect to make faith-based schools eligible for charters, and, therefore, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools should be deemed unconstitutional by the US Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.

Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free-market competition” by making them more like commercial businesses, yet this article demonstrates in part how churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses, but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment and incorporation. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. In Dartmouth College, the Marshall Court reimagined religious societies as private owners who, instead of governing as rival sovereignties, administered property in trust under their charters. But with the vague charters of general incorporation, state judges were left without a definite source of law to adjudicate church disputes. This article argues that courts thus allowed trust law to function as a conflict of laws analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.

It is a remarkable fact that ancient Christianity did not establish a distinct legal system. The early Christians did not take over the Jewish law as the basis for the church. Rather, they accepted the administrative and legal context of the Roman Empire and developed their religious and ethical views within this framework. Consequently, unlike in Judaism and Islam, a “Christian law” was not established, even not after the acceptance of Christianity as the official religion in the Roman Empire or as Christianity became the prevailing religion in the Middle Ages and remained so into modern times. Nevertheless, Christianity developed its own perspective on legal and ethical matters. Distinctive for this view is the difference between the commitment to God's will on the one hand and the respect for human legal systems on the other. In other words, Christianity developed a perspective on the relationship of law and theology that can be described as the implementation of a double directive: Christians are bound to an ethos oriented towards God's will, but at the same time they accept the rules and authorities of this world. This view also means that God's commandments found in the scriptures of Israel are now interpreted in a new way. They are not regarded as ethical and ritual rules that would separate Christian communities from society. Rather, God's law, interpreted by Jesus Christ, serves as the guideline for a life of the Christian believers within the world of the Roman Empire. Both of these concepts—the acceptance of the legislation of the society and the commitment to God's will—can come into conflict with each other, as has often happened in Christian history. Already in early Christianity it was pointed out that obedience to God should prevail over human law.

Tibet is distinct within the Buddhist regions of Asia for its claims to have developed religious laws. The rulers of its early empire civilized their people by creating laws on the basis of Buddhist principles—or so it is claimed by the writers of Tibetan historical narratives. In fact, the earliest Tibetan laws were not linked in any significant way with Buddhist principles, even after the religion had been firmly established in the region. In this article I explore why and how the idea of Buddhist law first emerged, examining its development through a number of texts from the empire (sixth to ninth centuries) and the immediate postimperial period (tenth to twelfth centuries). It turns out that more ideological accounts of Buddhist law were developed only as the structures of the empire were collapsing. Nevertheless, they do seem to have resonated with at least one, tenth-century ruler. These narratives set the scene for a long series of historical accounts in which the idea that Tibetan law was based on Buddhist principles took hold—an idea that was maintained well into the twentieth century.

This essay was presented as the 2015 McDonald Distinguished Scholar Lecture at the Center for the Study of Law and Religion, Emory University.

In Shergill & Others v. Khaira & Others [2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of the Nirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. In Shergill the Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). But Shergill also went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.

The practice of obeah, a term used to refer to a variety of African derived spiritual practices, remains proscribed in at least fourteen countries or territories in the Anglophone Caribbean today. This article examines the historical development of these laws and the significance of the continued prohibition of obeah. Although obeah laws were initially modeled on British statutes banning vagrancy and witchcraft, and were passed during a period when it was common for nations in the Western Hemisphere to prohibit the practice of African diaspora faiths, these statutes stand in stark contrast to the religious freedoms guaranteed in other parts of the Atlantic world in the twenty-first century. Obeah laws proscribe the mere performance of certain spiritual rituals, while other countries modified their policies in the mid-twentieth century to require evidence of intentional fraud and financial gain to convict occult practitioners. This article links the continued proscription of obeah to nineteenth century assertions that African peoples were animists and fetishists, as well as to long-standing hierarchies in the Western world placing theistic religions above those centered on spirit conjuring, divination, and the manipulation of supernatural forces.

The question “What is religion?” has again been roiling the academy, the courts, and public debate. In 1965, the Supreme Court of the United States opined on this question, deciding the fate of would-be conscientious objectors who would not affirm the existence of God. Relying largely on Paul Tillich, the Court ruled in their favor, expanding the notion of “religious belief” beyond its conventional Western confines. This article reexamines the issues raised in this case by exploring the theology of Paul Tillich, particularly its critique of religion as a separate sphere and its challenge to basic tenets of liberal political theory inherited from John Locke. The article, however, also juxtaposes the religion-expanding aspects of Tillich's thought with his strictures about “demonic” distortions of religion, requiring an excursus into Tillich's notions of the divine/demonic relationship. Tillich's rejection of the compartmentalization of “religion” led him to declare that more religious meaning may be found in putatively “secular” artifacts, such as Cubist art, than in conventionally “religious” symbols and institutions, including the Church. This approach both demands a radically interdisciplinary approach to “religion” and casts a skeptical eye on some putatively “religious” claims. The article concludes by juxtaposing Tillich's anti-essentialist critique of “religion” with more recent, and dramatically different, critiques, particularly those advanced by Talal Asad and Saba Mahmood.

This article looks at the ways in which the legal system of a modern European jurisdiction has engaged with a counter-cultural minority religious movement. The jurisdiction in question is England and Wales, and the religious movement is revived modern Paganism. The article seeks to cast light on the question of what a post-Christian secular state does in practice when its commitment to pluralistic values encounters a group whose self-understanding challenges the norms of both Christianity and secularity. In more general terms, it allows us to look at how the law of England and Wales has attempted to move beyond its historic confessional Protestant premises; and how this attempt has not been without its anomalies and shortcomings.

Here is a model for “legal theology,” a way of learning and teaching about God that arises in and responds to the desire to understand the significance of law: a son is moved to ask “what is the meaning” of the law followed by his father, and the father is commanded to explain by teaching about God's deliverance. There are three similar commands in Exodus (Exodus 12:26, 13:8, 13:14), linked in tradition, where sons wonder and fathers are commanded to explain how a particular law signifies God's redemption. These four commands in Exodus and Deuteronomy indicate a method for legal theology.

Using examples of ritual slaughter recognized by different religions in Africa, this paper examines the regulated and unregulated exercise of the right to ritual slaughter as a manifestation of the right to freedom of religion in three constitutional traditions in Africa.

This article commences with an evaluation of the existence of the right to ritual slaughter either as a freestanding right or a derivative right from the right to freedom of religion in the bills of rights of African constitutions. The article argues that the ritual slaughter at this stage of constitutional development in Africa is at best a derivative right partly anchored on the communal dimensions of the right to freedom of religion. The article closely examines the bearers and content of the right to ritual slaughter through a brief overview of the practices of ritual slaughter recognized by African traditional religion and Islam. In addition, the syncretic nature of religious practice in Africa identified as the multiple or concurrent witness to different faiths is also considered to provide a realistic account of ritual slaughter in Africa.

Since the right to ritual slaughter is identified as a derivative right from the right to freedom of religion, the article examines different constitutional traditions in Africa to determine how religion is conceived in constitutional governance that in turn affects the feasibility of the right to ritual slaughter within constitutional designs and capacity of other public interests such as animal welfare to limit the exercise of the right to ritual slaughter.

Three constitutional designs of the role of religion in constitutional governance are identified in this regard. The article concludes on a number of points, including the recognition of the importance of the articulation of the human rights that underpin animal welfare concerns and the fact that a regulated right to ritual slaughter appears feasible in a number of African countries.

The biblical authors often portray God as a royal judge who brings justice to a fallen creation. This portrayal analogizes God's role in governing humanity to the role played by judges in human legal systems. The divine judge, like human judges, investigates and evaluates conduct, measuring human acts against applicable laws. Like human judges, he fashions punishments and rewards to accomplish justice in light of the conduct disclosed.

In Pilate and Jesus, Giorgio Agamben argues that Pontius Pilate never formally condemned Jesus of Nazareth. “The traditional interpretation of Jesus’ trial … must be revised,” he urges, because “there has not been any judgment in a technical sense.” In Agamben's telling, Pilate's non-judgment is the original truth of Jesus's death that has been covered over by tradition. This is an intriguing hypothesis, but Agamben's use of sources in arguing it is highly irregular. This article offers a critique of the legal and philological argumentation of Pilate and Jesus. In the process, it revisits an ancient—and still actual—controversy surrounding the Roman trial of Jesus and demonstrates that Pilate did sentence Jesus, pro tribunali, to death on a cross.

Theological explorations of law have sometimes followed a “prophetic” model in which scripture or theological ethics serves as the primary norm for human law. After all, if God has spoken his Law into the world, especially a world beset by sin and oppression, should not human law answer to that Law? Moreover, is not law more authoritative when it is “found” or “discovered” within the framework of divine revelation than when it is “made” autonomously by fallen human beings?