Abstract
This chapter presents an integrated theoretical approach to explain how societies with religious diversity manage to exert social control over various religious groups that are a part of a society. A continuum of legal social control over minority faiths is posited that varies from groups ignored by a society to those over which rigorous control is exerted. In explaining placement of a society on the continuum the religious history of a society must be taken into account, as well as the make-up of the religious landscape, and how various religions are legally defined. Characteristics of the legal and judicial systems also are significant, including degrees of autonomy, pervasiveness, and centralization present, as well as whether the legal system is adversarial. The theoretical schemes of sociologists of law Donald Black and of William Chambliss are used to aid understanding of legal social control and management of religious groups within a society.
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Notes
- 1.
Although Jewish and Catholic informal or even formalized tribunals have been allowed in certain areas of life in some societies (clear examples of legal pluralism in operation), recently controversies have erupted when Muslim groups have called for even limited legal pluralism for Muslim groups in some western societies. See Ahdar and Maloney (2010) discussion of controversy caused when the Archbishop of Canterbury urged that Shari’a be granted some recognition in the U.K., Turner and Richardson’s discussion of controversy in America (2013), Richardson’s (2013) discussion of controversies in Australia, Mcfarlane’s coverage of the situation in Canada and America (2013), Aires and Richardson (2014) on controversies in Germany, Possamai et al. (2014) volume focusing on Shari’a in western and non-western nations, and Berger’s (2013) on Shari’s in western nations.
- 2.
Cooney did not discuss religion but his ideas are useful in understanding conflicts over religion that become legal and judicial matters. Those involved in a legal case make decisions about how much time and resources to spend gathering and developing evidence, and whether evidence developed can and will be used in court. Cooney points out that this is a social process explicable by knowing the status and prestige of those involved on both sides of a case, and how well they (and their advocates in an adversarial system) share the values of decisions makers. Cooney also allows for intervention in cases by third parties who might take the side of a disadvantaged party in the process. He proposes an intriguing concept of “strange attractor” to draw attention to situations where an otherwise lower status and prestige party attracts someone from a quite different station in life to assist in their defense.
- 3.
Judges sometimes lower the standards of evidence when an unpopular party is a defendant in a case before them. This has happened in some famous cases involving religious groups or individuals where questionable evidence was admitted, leading to convictions and long prison terms. The “Hilton bombing” case involving the Ananda Marga group and the Lindy Chamberlain case involving the Seventh Day Adventists are examples from Australia of such cases that were eventually overturned and the individuals freed from prison after serving long terms (Richardson 2000). But, there are other examples where judges allowed suspect evidence to be admitted. The “brainwashing” cases in the United States are another example of judges allowing weak evidence to be introduced to considerable effect on the outcome of cases brought by individuals against small religious groups (Anthony 1990; Richardson 1993). Judges can also disallow crucial evidence that might be quite dispository of a case’s outcome. Again, Cooney’s theory derived from Black’s theories offers assistance in understanding when decisions might be made to either allow or disallow evidence to be used in a legal matter.
- 4.
The Russian case also demonstrates the confluence of the theories of Black and Chambliss, and highlights the key role of the judiciary in developing policy toward religious groups in contemporary western societies. As noted, the Russian Constitutional Court has attempted to defend religious freedom for minority groups by enforcing the constitutional provisions concerning religious freedom even to the extent of declaring provisions of the 1997 law void. The rulings of this Court represent movement in the direction of more legal pluralism in Russia. This “resolution” was, however, unacceptable to the Russian bureaucracy which refused to enforce the judgments, leading to several cases before the ECtHR which Russia lost in a series of unanimous decisions. Whether the Russian state will accept those judgments and implement a new resolution that comports with the European Convention is not clear, however (Richardson and Lykes 2012; Richardson and Lee 2014; Lykes and Richardson 2014).
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Richardson, J.T. (2014). Religious Diversity, Social Control, and Legal Pluralism: A Socio-Legal Analysis. In: Giordan, G., Pace, E. (eds) Religious Pluralism. Springer, Cham. https://doi.org/10.1007/978-3-319-06623-3_3
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