Abstract
The concept of tradition, rather like that of secularism, has come to mean different things to different people in a variety of contexts. This Chapter explores an understanding of tradition as that group of rules or practices which sits alongside core governing texts of groups within civil society. It identifies tradition as that which facilitates the contextualisation of civil society groups over time. It then examines how tradition could be used as a tool for engendering peaceful civil society relations. To do this it first explains the rationale for identifying plural religious traditions as important for strong civil society building, including for the protection of fundamental rights and the socio-economic well-being of a nation. Tradition is then proposed as a means of countering the exclusion of plural religious voices from the public square arising both as a result of the secular narrative manifesting itself in extreme forms of Laïcité and as a result of forms of theocracy and confessionalism. The chapter does this by identifying the development of the concept of tradition, setting out dictionary definitions, definitions within the discipline of law and their interaction and links with definitions within the three Abrahamic faiths. The overarching thesis drawing these threads together is that the various methods of forming and using tradition by intermediate institutions of civil society could inform the creation of a platform as a dialogical basis to build consensus amongst individuals, institutions of civil society and governments. This envisages a plurality of religious voices not as a threat but rather as a richly diverse canvas upon which to paint the interactions of civic life and formulate the law that governs those interactions.
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Notes
- 1.
For example, Article 9 of the European Convention on Human Rights, incorporated into the law of England and Wales in the Human Rights Act 1998 and Article 18 of the International Covenant on Civil and Political Rights.
- 2.
Freedom of association is also protected as a fundamental right, however when they refer specifically to religion, rights frameworks protect it as an individual right.
- 3.
For example, Williams (2008, 2010) both as Master of Magdalene College, Cambridge and as the Archbishop of Canterbury, Metropolitan of the Province of Canterbury and Primate of All England (2002–2012) argues for religious integrity coupled with plural living together. Within the Christian reformed tradition theologians such as Abraham Kuyper, Herman Dooyeweerd, Nicholas Wolterstorff and Jonathan Chaplin explore Christian theological approaches to civil society; within the Roman Catholic tradition theologians such as Robert George and John Finnis; within Judaism authors such as Sacks and Walzer (ed) 2006. Although concerns have been raised as to whether or not democracy can flourish where Islam is the dominant faith: see Esmer (2013). However, Indonesia with its political philosophy of Pancasila would be an example of a Muslim majority country which promotes pluralism. In Indonesia there are six official religions. The political system operates on the basis of deliberative consensus emphasising representative democracy.
- 4.
The right to freedom of religion or belief is seen by Witte and others as the first or core fundamental right upon which the effective operation of rights frameworks depend (Witte 2007, 2). According to Witte, freedom of religion as a universal right, was established within nation states constitutional frameworks in Europe, and later in America, at least since the reformation. Some authors trace freedom of religion, as a right of the church to be free from state interference, back to the Magna Carta (Witte 2007; Griffith-Jones and Hill 2015, 3 ff). Witte in fact traces its origins even further back to the Edict of Milan 313.
- 5.
Bielefeldt, Ghanea and Wiener identify the importance of religious pluralism to support the right to freedom of religion and belief. They argue that pluralism goes beyond the anti-egalitarian politics of toleration and avoids the pitfalls of post traditional unification projects which fail to account for diversity (Bielefeldt et al. 2016), 6–7, 14–16. Following on from a rich Christian theological, as well as secular philosophical tradition, they discuss human dignity as the universal unifying factor, Bielefeldt et al. (2016), 16–21. Although this is not historically the only basis put forward as justification for freedom of religion or belief: see McIlroy (2013).
- 6.
For example, Dr. Mahathir Mohamad, former Prime Minister of Malaysia and Lee Kuan Yew, former Prime Minister of Singapore, advocates of Asian values, argue that human rights are culturally relative to Western societies. Although Devan Nair, former president of Singapore has argued for the universality of human rights. For academic debate on the issue see Inoguchi and Newman (1997), Khong (1997) and Sen (1997). For a discussion of the clash between the universalisms of Islam and human rights frameworks, see Cox (2013).
- 7.
Weber (1905) argues that religion creates a framework which shapes an individual’s understanding. It thus affects their understanding of their interests and how they decide to act. Within this framework soteriology provides both relief from suffering and reassurance of meaning. Religion can thus provide an incentive for individuals to act less selfishly, in the interests of the common good.
- 8.
Pew Research Centre (2012). Of these .2% were Jews, 31.5% were Christians and 23.3% were Muslims. Consequently 55% adhered to the Abrahamic faiths. 16% were unaffiliated, 15% were Hindu, 7% Buddhists, 6% folk religionists and 1% other religions.
- 9.
See in particular Pluralism Project @ 25 (2016).
- 10.
See also Casey (2016).
- 11.
This includes, for example, interreligious work of organisations such as KAICIID (founded by the Kingdom of Saudi Arabia, The Republic of Austria and the Kingdom of Spain, with a Board of Directors made up of representatives from major world religions): https://www.kaiciid.org; the Community of Sant’Egidio (officially recognised by the Catholic Church as a church public lay association): https://www.santegidio.org/pageID/30008/langID/en/THE-COMMUNITY.html; The Institute for Global Engagement (founded by the first US Ambassador at Large for Religious Freedom): https://globalengage.org; The Religious Freedom in Business Foundation: https://religiousfreedomandbusiness.org; The Faith and Belief Forum: http://www.3ff.org.uk; Global One 2015: https://globalone.org.uk/about-us/our-vision-mission/ (All accessed on 20 April 2018).
- 12.
Evidenced recently in the case of Achbita and another v G4S Secure Solutions NV (Case C-157/15) OJLR 2017 6(3): 622–623.
- 13.
For example see the Grand Chamber judgment of the European Court of Human Rights in Lautsi v Italy Application no 30814/04 [2011] ECHR 2412.
- 14.
This is echoed by Bielefeldt et al. (2016), 35–38.
- 15.
- 16.
The wearing of the veil within the Islamic tradition would be an example of this. Although contested, for some it represents a religious requirement and for others a cultural choice.
- 17.
UNHCR Refugee Agency (2017).
- 18.
Although in some cases religion can act as form of oppression, creating microcosms of communities from which refugees have fled: see Open Doors (2014). Such experience supports the pressing need to hear the religious voice of migrant communities in a dialogical manner so as to enable contextualisation within host communities.
- 19.
For example, see the Casey (2016).
- 20.
For example, in 2016 the European Union appointed a Special Envoy for Religious Freedom outside the EU, Dr. Ján Figeľ: https://ec.europa.eu/europeaid/special-envoy-jan-figel_en (date accessed 20 April 2018) and speaking at the opening of the European Academy of Religion, Italy 15 December 2016 https://www.youtube.com/watch?v=QE_-0tpmEfE and at the Institute for Cultural Diplomacy: Annual Conference on Cultural Diplomacy: 5 January 2017 https://www.youtube.com/watch?v=iimjLKoGk6g.
- 21.
See for further analysis Giles (2017).
- 22.
See also Benson (2010).
- 23.
Strong support for a dialogical approach between faith traditions from within the Christian faith was put forward by Newbigin based on his theological training and lived experience as a missionary in India Newbigin (1989).
- 24.
See in particular Chap. 1.
- 25.
- 26.
For further discussion on this see: Giles (2018).
- 27.
OXFORD ENGLISH DICTIONARY definition of “Tradition”. By permission of Oxford University Press.
- 28.
De Lange identifies Tradition as all those materials encompassed with the interpretation of the Torah, the tradition of Worship, biblical tradition, legal tradition, ethical tradition, mystical tradition and theological tradition, eschatological tradition. One might also add to this the philosophical tradition and Kabbalah.
- 29.
Downie (2005), 1760–1761 (by permission of Oxford University Press).
- 30.
The use of constitutional conventions within Parliament in the UK is an example of political tradition developed over time based on conduct rather than rules or legal norms. For example the Salisbury Convention—this states that the House of Lords will not oppose legislation from the House of Commons that was part of its election manifesto.
- 31.
Scott and Marshall (2009), 238 (by permission of Oxford University Press).
- 32.
Teaching on a particular subject matter which is regarded as true concerning that subject matter.
- 33.
Ideas, customs or social behavior.
- 34.
This is so within the UK: for example, see R v D (R) [2013] EW Misc 13 (CC); in the jurisprudence of the European Court of Human Rights: for example, see Ebrahimian v France [2015] ECHR 1041; and in the jurisprudence of the Court of Justice of the European Union: for example, see the Achbita case and Bougnaoui and another v Micropole SA (Case C-188/15) 2017 OJLR 6(3): 620–622. Although in many of these legal cases the wearing of a veil was limited in the interest of the enjoyment by others of other rights, the court acknowledged that the wearing of the veil was an exercise of religious freedom in the first place but that this right to religious freedom was legitimately limited. This avoided any lengthy legal disputes as to whether the veil was an expression of religious freedom or a cultural requirement.
- 35.
Lautsi and others v Italy (2012) 54 EHRR 3.
- 36.
Thebault (2017).
- 37.
Pancasila is based on five principles: belief in the One and Only God; a just and civilized humanity; a unified Indonesia; democracy, led by representatives of the people and; social justice for all Indonesians.
- 38.
Decisions No 140/PUU-VII/2009: Constitutional Court, Republic of Indonesia, 19 April 2010. 2012 OJLR 1(1): 527–528. In that case the court ruled that the Indonesian Blasphemy Law, Law 5/1969, by allowing the state to ban a group that was considered to have deviated from the teachings of a religion, did not infringe the right to freedom of religion enshrined in the Indonesian constitution. This was because the blasphemy law was seen as a legitimate interference with that right in the interests of public order and religious values. The Blasphemy Law was upheld as necessary to maintain social harmony and prevent religious deviancy.
- 39.
The legal aspects of tradition also take into account judicial reasoning and interpretative tools. Where courts apply a literal interpretation to statutory interpretation this involves adhering to that which Parliament made evident by the words it used, where the courts apply the mischief rule or a purposive approach this facilitates a more responsive and adaptive approach to statutory interpretation. The literal rule is akin to orthodoxy—sticking with the rules as they were created, the mischief and purposive approaches provide scope to adapt the rules either within what might be considered tradition or taking it outside established ways of thinking or reasoning. Where the gap between established rules and newly created rules is too great it is at this point that tradition—in the sense of an ongoing and continuous body of law—might be said to be broken. For an exploration of Jewish legal reasoning in the context of halakhic tradition see David (2014), 11 ff. David looks, inter alia, at legal discretion and legal reasoning in a comparative Jewish/Islamic context.
- 40.
Etkins (2018).
- 41.
- 42.
Frederick A Whitney Professor, St John’s Law School and Director of the Centre for Law and Religion.
- 43.
References to the Tradition Project have links provided on the Tradition Project web page at: http://www.stjohns.edu/about/news/2016-10-27/center-law-and-religion-s-tradition-project-convenes-new-york date accessed May 2017.
- 44.
Presumably when a government decides to legislate this then creates a formal rule, which, although based on tradition, steps outside the definition of tradition as identified thus far.
- 45.
http://judicialpowerproject.org.uk (date accessed August 2018)
- 46.
Irving (1973).
- 47.
Namely that judges weigh and apply competing rights in all cases, law consequently embraces moral and political as well as strictly legal rights.
- 48.
Al Khawaja and Tahery v The United Kingdom App nos 26766/05 and 22228/06, [2011] ECHR 2127.
- 49.
Giles (2017) and CJEU judgments in the cases: 2017 OJLR 6(3): 620–622.
- 50.
https://www.theamericanconservative.com/dreher/tradition-law/ (Date accessed May 2017) and http://www.theamericanconservative.com/dreher/the-tradition-conference/ (Date accessed May 2017).
- 51.
http://mirrorofjustice.blogs.com/mirrorofjustice/2016/10/tradition-and-reason.html (Date accessed May 2017).
- 52.
The three Abrahamic faiths have been chosen for this study because it was necessary to place a limit on the length of this chapter.
- 53.
In the sense that this encourages a non-reductive and non-totalising examination of history, but rather examines differences, forms of mutation and transitions and looks for relations between them: Kendall and Wickham (1999), 24.
- 54.
Torah can be used to mean the written and oral law which includes Jewish scripture as a whole and includes all authoritative Jewish religious teachings throughout history.
- 55.
The initial consolidation of rabbinic literature. Aggadah, which means ‘the telling’, is a body of rabbinic exegetical, narrative, philosophical, mystical and other ‘non-legal’ texts. Authors of halakhah drew upon and incorporated the Aggadah into the Talmud and Midrash. Midrash is the genre of rabbinic literature which included early interpretations and commentaries on the Written and Oral Torah.
- 56.
For a detailed account of legal reasoning applicable to halakhah see David (2014), 11 ff.
- 57.
This question is not about the authority of the sources, that is the authority of those who passed the tradition down but how their remembering might have affected the tradition they did in fact pass down.
- 58.
2 Cor 3:2-3, 6 NRSV.
- 59.
1 Cor. 15:3-5 NRSV.
- 60.
The Telegraph. 16 April 2018. Meet the former NHS psychologist trying to get inside the mind of Boko Haram. https://www.telegraph.co.uk/news/worldnews/africaandindianocean/nigeria/11644162/Meet-the-former-NHS-psychologist-trying-to-get-inside-the-mind-of-Boko-Haram.html.
- 61.
Councils took place in Nicaea, Constantinople, Ephesus and Chalcedon.
- 62.
In the early to high Middle Ages questions arose concerning the authority of the scriptural commentaries of the Early Church fathers and of the Conciliar creeds compared to scripture: Hugh of St Victor (1091–41), St Bonaventure (1221–74) and William of Ockham (1288–1348). Henry of Ghent (1217–93) foresaw the issue which was to redefine the concept of tradition and that sparked the European reformation, namely what happens when ideas that are matters of private judgment and custom are raised to the level of tradition (Rowland 2013, “Tradition”).
- 63.
For example Driedo J. 1533. De ecclesiasticis scripturis et dognmatibus.
- 64.
Dogmatic Constitution on Divine Revelation (1965) of Vatican Council II. DV 2.9.
- 65.
Schleiermacher (1830).
- 66.
Rowland (2013), Tradition. Rowland cites as examples: Drey (1777–1853), Möhler (1796–1838) and Johannes von Kuhn. The emphasis here was on living truth rather than transmission of old ideas, with the Holy Spirit active in human life. It was participation in the Trinity rather than adoption of a higher moral teaching that facilitated the engagement with and development of tradition.
- 67.
McGrade (2013).
- 68.
Authors such as Möller (2012).
- 69.
An example of this within the Christian faith is demonstrated in the theological approach to Tradition of Cullmann and Ratzinger. Although from different theological positions, Ratzinger (Roman Catholic) and the Swiss Lutheran theologian Cullmann (1954), who made a study of the word Paradosis (Tradition) in the New Testament, both argue that Christ stands behind the transmission of Tradition, working in it, being its content and its author. Rowland’s view is that while not accepting the concept of a Magisterium or Church hierarchy continuing the work of the Apostles throughout all time, Cullmann brought the two sides more closely together on the role and concepts of scripture and Tradition (Rowland 2013; Tradition).
- 70.
Resonances can be identified here both within Orthodox Judaism where there is a more fixed approach to tradition.
- 71.
Jews, Christians, Hindus and Zoroastrians were to some degree tolerated (Busse 2010, 9–10). This strain of Islam developed into Islamic fundamentalism and Wahhabsim—a pure Islam purged of any developments arising during the centuries after the establishment of Islam. This can be found in particular today in Saudi Arabia. A League of the Islamic World (Rabitat al-’alam al-islami) was founded in the later half of the 20th Century to propagate Islam in non-Islamic countries, building mosques and spreading the message of Islam throughout the world.
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Giles, J. (2018). Tradition as a Peacebuilding Tool. In: Giles, J., Pin, A., Ravitch, F. (eds) Law, Religion and Tradition. Law and Religion in a Global Context, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-96749-3_8
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eBook Packages: Law and CriminologyLaw and Criminology (R0)