Interrogating law's religion : non-Christianness, belonging and nationhood

Religion regularly circulates in juridical discourse as comprising of belief or faith in a transcendent being. The thesis challenges this notion of religion, adding to the existing socio-legal law-and-religion literature by examining how religion comes to be conceptualised, represented and produced through law (law's religion), as well the effects that this conceptualisation of religion may have. Central to this examination is the relationship between religion and race, ethnicity and/or culture in juridical discourse, and how non-Christianness, in certain instances, comes to be understood through a racialised and orientalist lens.

The analytical sites are two areas of law relating to children, precisely because children's religious identities often come to be drawn for them, usually by their parents. In the case studies examined, judges and government Ministers are placed in a position of deciding on, and actively influencing, children's future religious identities and values. The first case study examines judicial discourse in child welfare cases where the religious upbringing of a child is adjudicated upon. The second case study discusses the discourse on law and policy relating to religious education and faith schools in England. Drawing out the relationship between religion and race, ethnicity and/or culture, the case studies explore juridical conceptualisations of non-Christianness. This focuses the analysis on the relationship between Christianness and secularity in the English context, as well as the convergences between religion, community, belonging and nationhood.

The central argument developed here is that religion itself can come to be authenticated, demarcated and therefore produced in and through law; judges and government Ministers participate in the formulation of the parameters of religion. Key instances of this argument include firstly, judicial involvement in adjudicating upon a child's religious identity within family law, along racialised and orientalist lines; and secondly, the former Labour government's promotion of 'common values' based on Christian values within education. I suggest that these 'values' alongside the 2006 legal duty on schools to promote community cohesion, can come to regulate faith schools that are deemed to be divisive within society, in ways that, again, rely on racialised and orientalist notions of non-Christian religion.

Highlighting the existence and potential effects of racialised and orientalist discourse in juridical conceptualisations of non-Christianness, the thesis demonstrates that fixed notions of religion do not then capture what is at play in relation to how non-Christianness comes to be conceptualised. Nor do essentialist notions of religion allow us to view the effects of the privileged position of Christianity whether in terms of how non-Christianness is understood through the Christian theological paradigm, as belief and practice, or how it underpins the discourse of universal and secular values. This analysis provides another perspective or entry point to what is often posed as the problematic of religion for law, namely, the extent to which law ought to protect religious freedom or recognise religious identities. It is an analysis that seeks to highlight what is at stake for non-Christian subjects in only focusing on religion as the problematic rather than on the ways in which religion comes to circulate.