National, international and supranational perspectives on religious education, law and the judiciary: past, present and future

Introduction

In this editorial, we discuss the past, present and future of research and scholarship on the relationship between religious education, law and the judiciary, through national, international and supranational perspectives. The past is explored through highlighting previously published articles in this journal over eight decades, illustrating some perennial issues and challenges, both in the UK and internationally; it thereby acts as a catalyst for the new scholarship and research in this special issue. The present is explored through a discussion of the papers of this special issue, which range from Colombia to Scotland and from national to international/supranational perspectives, exploring various issues related to religious education, law and the judiciary. We then present broad comments on the future of research and scholarship on the relationship between religious education, law and the judiciary.

The past

First, we take stock of the past by presenting some of the research and scholarship on national and international legislation and court rulings in religious education that have previously been published in this journal (or its antecedent publications). Clearly, other educational and legal research journals have tackled these issues (e.g. Fokas 2019), and a more thorough review would be valuable. The articles considered below were chosen by searching key words such as ‘law’, ‘legislation’, ‘act’ and ‘court’ and by scanning the articles which appeared, notably after important legislation, such as the 1944 Education Act. These articles were selected to illustrate both national and international legislation, including international court cases. We note the constitutional or legal provision sections in the ‘country reports’ (e.g. Bin Jamil 2022; Hendek 2019), as further evidence of the value of this topic, though do not follow these further. The topics covered include new legislation around religious education, particularly syllabuses, syllabus-making, content and the opt-out clause. Articles focusing specifically on faith/church schools have been excluded. Several illuminatory themes are discussed but are not intended to be systematic.

The first issue of Religion in Education, the original predecessor of British Journal of Religious Education, was published in 1934, sixty-four years after the Forster Act of 1870, which laid the basis of universal and compulsory elementary education in the UK and had clauses pertaining to religious education. In the very first issue of the journal, Lord Irwin (1934), President of the Board of Education, 1932–1935, lamented that ‘the organisation of religious education’, referring to Forster and subsequent acts, ‘presented difficulties’ and ‘in fact made the subject the Cinderella of the schools’ (p. 4), thereby acknowledging the already complex relationship between religious education and legislation. However, in the Journal’s early years, legislation was not tackled directly, and even the 1936 Act, which gave legal recognition to local syllabuses, is only mentioned in passing (Anon 1938).

This was about to change ten years after its first issue. In the aftermath of the Education Act 1944, a series of four short articles appeared, all entitled ‘the Butler Act in Practice’, each with a particular focus (Barker 1946; Harrison 1945; Yeaxlee 1944, 1945). In his two articles, Basil Yeaxlee, the journal’s editor (1934–1957), discussed the Act’s implications for the subject. As the word ‘syllabus’ was not defined in the Act, Yeaxlee (1944) wrote about what a syllabus is, what it is not, and what its aim should be. He argued that ‘The aim of the Syllabuses is to help teacher to do their own work in their own way, individually and as members of the school team’ (p. 2), thereby steering a path between those teachers ‘who objected to being told, as they thought, what to teach [and] resist[ing] the disparagement of those denominationalists who poured scorn on the sub-Christian, as they saw it, character of agreed syllabus religion’ (Chorley 1984, 65). It is perhaps striking that what seems almost self-evident now was a radical and contentious innovation at the time. From these articles onwards, one recurrent theme is that legislation is by nature contentious. As Bell and Stevenson (2006, 37) suggest ‘there are inevitably struggles, because these are disputes about values in all their shapes and forms’, and Yeaxlee (1945, 63) described the ‘hopes’ and ‘fears’ amongst the religious education community towards the new requirements.

This can be seen thirty years later when discussions about legislative requirements came to the fore, both for school worship (Cole 1974) and especially for agreed syllabus, thanks to the 1974 and 1975 Birmingham Agreed Syllabuses. Even though the new editor of the journal, John Hull, argued that the 1944 Education Act was ‘flexible’ and ‘still good in important aspects’ (Hull 1976, 123), some argued that it had already fallen into disuse. One such was Stopes-Roe, the chairman of the British Humanist Association and senior lecturer in Science Studies, who discussed both the 1974 and 1975 syllabuses and their relation to the 1944 Education Act. Stopes-Roe (1976) argued that the 1974 syllabus conformed to contemporaneous educational principles but not the 1944 Act, while the 1975 syllabus, which was dominated by different religions, conformed with the 1944 Education Act, but was not very up-to-date. The theologian John Hick’s (1976) reply followed it in the journal, in which he argued that the 1975 syllabus ‘is not nearly as bad, from a Humanist point of view, as Dr Stopes-Roe thinks’ (p. 136); the exchange is of particular relevance in the light of current legal arguments for the introduction of worldviews, in showing how this debate is not new.

It is also evident from the articles that legal interpretation changed as society changed. Forty years after the 1944 Education Act, Earl (1984), a former inspector, argued that the typical agreed syllabus of the eighties differed in three important respects from its predecessors of forty years ago: format, inclusion of non-Christian religions, and aims. He argued that ‘all this development has been achieved simply by exploiting the latent flexibility of the Act and without any legislative change’ (p. 90). He also claimed that the Act ‘is working remarkably well and all governments prefer to let well alone’ (p. 91), either not foreseeing that just four years later, parliament would not ‘let well alone’, with a major alteration of the law in 1988, or possibly subtly arguing for maintaining the status quo.

The major alteration was the 1988 Education Reform Act, which the journal’s editor between 1971 and 1996, John Hull, wrote about extensively, devoting as many as twelve editorials to it (Copley 1996). Hull, who was described by Copley (1996) as ‘not merely keep[ing] pace with change but sometimes [leading] it’, was quick to describe what the 1988 Act meant for religious education syllabuses. He argued that the Act’s description of the content of religious education, especially singling out ‘Christianity’ among other religions, ‘does not require any direct change in the content of religious education at all’ and ‘there is no absolutely no suggestion here that religious education should be “Christian-based”’ (Hull 1989, 60). Hull even argued that the Act ‘breaks the assumed Christian monopoly’ (p. 61), though he was thereby criticised elsewhere by Thompson (2004), who considered that he was proposing the very opposite of the legislative wording and Parliament’s intention.

One can assume that legislation is not the arbitrary intervention of Parliament. It reflects wider developments in society, politics, culture and education, but either to formalise them or to prohibit them. Harte (1991), a barrister and lecturer in law, explicitly discussed the religious clauses of the 1988 Education Reform Act, particularly school worship and religious education, from a lawyer’s point of view. He claimed that this Act’s religious clauses not only mirrored educational and social trends, but also legal ones, arguing that the religious clauses of the act were ‘flexible and open-ended’, mirroring contemporary trends in law and legal interpretation, and highlighting how legal drafting and jurisprudence are themselves open to change – thereby echoing Earl’s (1984) point. Similarly, Hull (1989, 61) pointed out how the 1988 Act consolidates existing educational practice, as it ‘represents a considerable acknowledgement of the work done in the last twenty years in turning the interest of religious education upon contemporary religion as a living reality’. However, these shifting wider developments led White (2004) to argue that as ‘Britain is an increasingly secular society’ (p. 151) the subject should no longer be a statutory requirement. His paper stimulated much debate about the subject’s philosophical and pedagogical justification (Cush 2007; Wright 2004), though unfortunately the legal aspects were not well articulated within those debates.

So far, the articles focused on England and Wales, and even though the journal has always had an international dimension, especially since the late 1970s (Jackson 2008, 183), it was the intervention in the 2000s of the European Court of Human Rights (ECtHR) and the United Nations’ Human Rights Commission (UNHRC) into religious education (ECtHR 2007a, 2007b; UNHRC 2004), which led to a series of articles on supranational human rights and judicial decision-making outside the United Kingdom. In the aftermath of supranational court cases, a series of articles about Norwegian religious education appeared (Andreassen 2014; Hagesæther and Sandsmark 2006; Lied 2009). Further, Relaño (2010) discussed both the Norwegian and Turkish cases before the ECtHR (Zengin and Folgerø), which had stirred academic and public debates more widely. These articles obviously show that religious education is a legally contested and contentious subject (Matemba 2013), but also make apparent the connections between debates in different countries, not least as the ECtHR’s decisions are binding on all member states: a decision about Norway applies in Turkey, France and Scotland. Lied (2009) described religious education in Norway as ‘a debated subject’ nationally (p. 255), and pointed to the Folgerø decision where the ECtHR judges were marginally divided 9–8 on the case, showing the difficulty for the judges, let alone religious education stakeholders in making sense of these judgements.

Moreover, these articles also show that if legislation and court decisions did produce answers, they often created further questions; Relaño (2010), for example, argued that the European Court of Human Rights made ‘an insufficient analysis’ (p. 25). Some of the questions she raised were: ‘how to discern whether education is neutral and objective’ and how to carry out ‘objective and neutral’ religious education (p. 26 original emphasis), echoing wider concerns about the limitations of the courts for the development of policy (see also Fancourt 2022; Heise 2002). She also pointed out the absence of any consideration of the rights of the child (p. 27). Lied (2009), by contrast, adopted a less critical and more creative approach by considering how to create a common religious education in Norway that addressed both the applicants’ and Norwegian government’s arguments.

In these court cases, one central issue was the right of withdrawal from religious education. The ECtHR found that both Norway and Turkey had violated the right to an education in conformity with the parents’ religious convictions, partly because both countries refused to grant the applicant families the right to withdraw from religious education (ECtHR 2007b, 2007a). However, while for Turkey and Norway the issue was the lack of the right to withdraw, for others the issue was conversely the existence of the right to withdraw, and four articles directly tackling the issue of the right to withdraw have appeared in the journal (Louden 2004; Lundie and O’Siochru 2021; Nixon 2018; Richardson et al. 2013). For example, Richardson et al. (2013) report the findings of a project established to examine the views and experiences of students, families and community leaders from minority belief background, including those of no religion in Northern Ireland. They discuss the effectiveness of the right of withdrawal as a means of protecting the freedom of religion and belief of members of minority faith communities in relation to the teaching of religious education in schools. The writers made a case for inclusive and open-ended religious education which people of all beliefs could opt in. More recently, Lundie and O’Siochru (2021) present an analysis of a survey of the views of 450 headteachers and religious education coordinators in England on the right to withdraw; they questioned whether this provision is still ‘coherent’ or ‘necessary’ for contemporary multi-faith RE (p. 161), because they found is considerable confusion, misapplications and misunderstandings regarding the right to withdraw; the majority of their respondents favoured removing the right.

These articles not only discussed the legislation and its application in the schools, but also suggested possible changes in legislation. Different authors often adopt normative positions on current law or jurisprudence. Richardson et al. (2013) argued that current opt-out mechanisms are not enough to protect the freedom of religious and belief of members of minority faith communities, if the religious education provided is not inclusive enough. They suggested ‘inclusive, open-ended and balanced religious education’ (p. 248) and also argued that international bodies should consider requesting states to ‘operate an opt-in rather than an opt-out mechanism’ (p. 247), as the opt-out mechanism itself is not enough to protect the rights of minorities. Lundie & O’Siochru, by contrast, questioned whether the right to withdraw is still coherent or necessary for contemporary multi-faith religious education in England, echoing Nixon’s (2018) discussion on Scotland. While the authors did not openly call for ending the right to withdraw, they suggested that the legal settlement could be altered, which would include ‘clarity on the non-directive purpose of contemporary RE’. They also argued that ‘there remains no logically coherent argument for why [the right to withdraw] should exist exceptionally only in regard to contemporary RE in England’ (p. 171), echoing Hull (1996, 132) who had argued that the right to withdraw should be extended to any subject which parents might express ‘reasonable concern’.

After the international dimension and the right to withdraw, a recent article turns our attention to a different national setting – China. Nai et al. (2020) focused on legislation and legislative regulations governing China’s diversified religious education, from limited religious education included in general education to missionary religious education conducted at designated venues for religious activities. The authors note that China currently does not have a specific law on religious education, and therefore they screened and classified thousands of legal documents to make sense of religious education provision in China. While even if legislation can be confusing, the lack of specific legislation on religious education could be as confusing. Since there is no specific legislation on religious education in China, Nai et al. had to screen and classify thousands of legal documents to understand and make sense of religious education provision in China. What they found was ‘segmentation, inadequacy and inconsistencies of legal provisions’ at the national and local levels (p. 83), and they argued that ‘there should be clearer and more unified regulations’ (p. 81). Nai et al. also reminded their international counterparts of the importance of having special legislation on religious education: they argued that religious education requires ‘legislation and policies to provide guidance regarding how it should be handled and conducted in educational settings’ (p. 75). The article is a reminder of the need for further research in global, non-European settings on these issues.

The present: the special issue

Eight articles are assembled in this special issue, covering a range of geographical, educational, legal, and methodological perspectives. We received twenty-seven responses to the call for papers in 2020, from nineteen countries, across four continents, suggesting that this focus speaks to a range of scholars and researchers. It was particularly difficult selecting and balancing the different contributions that the papers would make to the collection. The pandemic also affected various (potential) contributors’ work and progress, and we would like to acknowledge the efforts of those who were able to submit drafts and those who found it too challenging. In the end, we have collected three papers about Great Britain (two on England and Wales, and a Scottish contribution), three on Western Europe (Spain, Belgium, and a German paper about European law more generally), and two focusing further afield, Turkey (Europe/Asia), and Colombia (South America).

One purpose of the special issue is to bring educational research and legal scholarship into conversation with each other, and this can be shown in its organisation. The opening pair of papers offer an analysis of the law; they are about educational practices through the prism of legal scholarship. First, Gas-Aixendri considers the complex Spanish and European case law on the employment rights and obligations of Catholic religious education teachers, showing how legal provision for employees rubs up against the church’s legal demands under educational law. At one level this is a tension between seeing teachers as contracting employees, who must fulfil their work obligations in school but outside of which there are no (or only minimal) professional demands, and seeing them as vocationally committed to the church, modelling a ‘testimony of life’, in her words. There have previously only been a handful of papers in the journal specifically on religious education in Spain, and none specifically on legal constraints on teachers, so this is a welcome addition. Next, Berkmann focuses on case law from the ECtHR on the right to opt out of religious education or worship, particularly the paradox that exercising this right by declaring one’s convictions was itself a breach, which, in his words, ‘would render a system of exemption practically impossible to implement’. He suggests a suitable way of differentiating various decisions.

Next, four papers consider the implications of law and judicial decisions on educational practice in particular countries through a theoretical or narrative review of legal, policy and curricular provisions. Three papers consider different aspects of the right to opt-out, particularly the interrelationship between supranational obligations, national laws, and educational policy and practice, as this right has fairly regularly been brought to the ECtHR. Kaymakcan & Hendek explore how Turkey twice found itself on the losing side of litigation on this issue – and how it reacted to these experiences, given that ‘maintaining the status quo was not an option’; they outline some suggestions for the subject’s development to satisfy both human rights requirements and the constitution. Wareham adopts a critical policy analysis to consider the implications of a judicial decision, in this instance the Fox case in England and Wales, which drew on European human rights law to hold that non-religious perspectives needed to be included in syllabuses if religious education is to be considered impartial; she compares the developments in both England and Wales following the case, arguing that ‘the Welsh approach should be adopted’. Franken & Lievens review recent policy developments in both the French and Flemish communities in Belgium to remove the opt-out provisions and replace them with ‘opt-in’ provision. Nevertheless, as they say, ‘not anything goes’ and they consider the extent to which these changes in each community fall foul of both the national Belgian constitution and human rights obligations – and therefore if there is a tension between the constitution and human rights. Their paper considers the potential for future litigation as a result of policy change, whereas Kaymakcan & Hendek and Wareham outline the implications of past litigation on policy reform. In the fourth paper, Garavito-Muñoz adopts secularisation theory to consider the tensions in Colombia between the Constitution’s secular rhetoric, the Catholic church’s enduring institutional presence, and the population’s shifting religiosities; this is the journal’s first paper on Colombia, though there have been others from South America, and shows how enduring colonial legal legacies can be.

The final pair of papers deploy fresh documentary research. Fancourt reviews a corpus of English legislation over two centuries, to identify the different meanings of the term ‘religious education’, thereby shedding light on neglected laws in the subject’s development, to argue that it ‘is best thought of as a bundle of educational rights attached to freedom of belief around which curricular and pedagogical decisions must be made’. Methodologically, this sits between legal analysis and educational policy research. Scholes adopts an educational research approach to policy documents, scrutinising inspection reports in Scotland to consider how inspectors make judgements about legal compliance, showing the ‘mixed messaging [which] contributes to the continued precariousness’ of religious education’. He finds that inspectors essentially undermine the legal obligations that they are charged with upholding.

Collectively, these papers show the fruitfulness of exploring this topic, in geographical spread, importance of the issues, and variety of methodologies. Clearly, much of the world is missing from this selection, notably North America, Africa, Oceania, and much of Asia. The issues collected here are almost self-evidently important since there are laws and court cases about them, and include: teachers’ religiosity and professionality, curriculum, human rights – specifically the right to opt out, the place of religious institutions in education, the meaning of religious education, the role of inspection, and the effects of supranational law and courts. There are some obvious omissions, such as: the display and wearing of religious symbols (by pupils and teachers); the status of and admission to faith schools; collective worship; opt-out in relation to other subjects or school activities, such as physical education, music or art. The methodologies here tend towards text-based analysis and scholarship, which is possibly a consequence of a focus on the law and the courts, but also of the pandemic, because many empirical approaches were stymied.

The future: possible research directions

After presenting the articles appeared in the journal in the past and the articles of the special issue, we make four broad comments about future research on legislation, the judiciary and religious education.

First, there is a general trend for legal and judicial issues to become increasingly important and we consider that they will continue to do so for both the subject and research. As seen above, in the journal’s early years, legislation was usually only discussed after major changes, such as the 1944 Education Act or the Education Reform Act 1988; the only exception was when the legality of innovations was disputed, such as the Birmingham Agreed Syllabus. Ironically perhaps, historians of religious education have explicitly focused on early legislation, placing it within wider policy trends – though not in this journal (e.g. Parker, Allen, and Freathy 2020). Therefore, in ‘the past’ section, there were few very old articles, and most articles are more recent. This general trend can also be seen in the proliferation of religious education reports in Great Britain which tackle religious education legislation (e.g. Commission on Religious Education 2018). In responding to this trend, we would urge for more exchange between legal and educational researchers and scholars. Questions of meaning (Fancourt, this issue) and perception (Scholes, this issue) are of shared concern. Within this journal, lawyers have from time to time contributed, either individually (Harte 1991; Relaño 2010) or within multi-disciplinary research teams (e.g. Richardson et al. 2013), which is only to be welcomed.

Second, interrelatedly, there has been an increasing growth of international scholarship and research on this issue. In ‘the past’ section, there were few articles from outside the UK, and all those appeared after 2000. By contrast, in this special issue, we present only three articles from the United Kingdom, the other five being from Europe and the Global South. It can be argued that accounts of national debates about the subject in various countries mean that these issues are shared by researchers and scholars. Most countries are likely to have constitutional arrangements across a spectrum from inclusion to exclusion of religion(s), so will have generic legal provisions in place, and they are consequently likely to have passed legislation that addresses the educational implications of this arrangement. Put differently, there will be laws on religion and education, and these are worthy of study and comparison by legal and educational scholars and researchers. For example, Bin Jamil’s (2022) account of the ‘Malaysian Dilemma’ of ensuring that different ethnic and religious groups have an understanding of each other in a country with a constitution that prioritises one religion (Islam) echoes other accounts of the tension between religious legal privilege and societal aims for education. Indeed, in much of the world, the legal position of religious education could be profitably viewed through a postcolonial lens (see Garavito-Muñoz, this issue; Gearon et al. 2021).

Third, questions around human rights clearly affect many issues. More rights issues are likely to be raised, and across an increasing range of countries, as well as at the supranational level itself (Berkmann, this issue). This is of course different from the question of human rights education itself, and how this interacts with religious education (e.g. Gearon 2002). However, supranational courts’ interventions in national religious education legislation and the increasing interest in global governance on standard setting in religious education make the international and supranational human rights dimension relevant to national legislation and policy today more than ever (Hendek and Fancourt 2021), especially as other supranational bodies have also advocated human-rights informed approaches (e.g. Jackson 2009).

Lastly, in particular, one of the more contested human rights questions for religious education is the right of withdrawal, addressed by a considerable number of previous articles and several in this special issue. We suggest that this will become a more contested aspect of religious education law in the future, debated not only in academia or parliaments, but also in local, international and supranational court rooms. There are questions about: differing provision across countries (Franken & Lievens, in this issue); the current supranational ruling that it is unnecessary if the subject of objective and impartial, but also the mechanism for opting out (Berkmann, in this issue); the identification and treatment of religions and non-religions (see Wareham, this issue); whether it should be opt-out or opt-in (Franken & Lievens, this issue; Richardson et al. 2013). There are also questions about how this right is perceived by different stakeholders (Lundie and O’Siochru 2021; Nixon 2018; Kaymakcam & Hendek, this issue) – including pupils (Niens et al. 2013). There is also the issue of why it is only limited to religious education (Hull 1989) – not least since it can also be challenged in relation to other subjects.

In conclusion, we look forward to looking back in a decade or so on the issues and approaches adopted, to consider if these four suggestions are the direction of travel. Indeed, this introduction is intended as an invitation to and encouragement of new and different investigations, both in Britain and internationally, on either these or on other issues.