Monday, 2 July 2012

Paganism in English law

The historical background

As I have pointed out in an earlier post, modern English law is essentially secular in character.  Survivals of historical Christian culture such as the special legal status of the Church of England are best seen as just that - survivals, rather than defining features of the contemporary legal landscape.

Of course, it has not always been thus.  England was historically, in law as well as in fact, a Christian country.  It was never illegal under English law to be a pagan, but the Blasphemy Act 1697 did made it illegal for a Christian to cease to be a Christian, and hence for a Christian to convert to paganism.  No known prosecutions were brought under the Act, however, and it was eventually repealed by the Criminal Law Act 1967.

Pagans laboured under severe legal disabilities.  It appears that a pagan could not sue in the king's courts (Yearbook 12 H 8, fol. 4, as cited in Calvin's Case (1608) 77 ER 377).  Pagans were regarded as "enemies" (East India Company v Sands (1695) 89 ER 988), and both Sir William Hawkins (in his Pleas of the Crown) and Sir William Blackstone (in his Commentaries) refer to doubts in the legal community that pagans were under the king's protection.  It was not decided until 1745 (in a case concerning a Hindu) that a pagan could be a witness in court (Omychund v Barker (1745) 26 ER 15).

When not used with an exclusively historical reference, the term "pagan" overlapped and coexisted with other terms, including "infidel", "Jew", "Turk" and "Mohammedan".  Sometimes it was used as a general contrasting word for "Christian", so that there was a binary "Christian"/"pagan" contrast or dichotomy (Coke, 4 Inst 155; Swann v Broome (1764) 96 ER 305; Of the Sufficiency and Disability of a Witness (1744) 22 ER 337; Nightingale v Bridges (1689) 89 ER 496; Nurse v Yerworth (1674) 36 ER 993).  At other times, it was used as a dustbin category for non-Christians for whom there was no more specific designation.  In this sense, it denoted members of non-Abrahamic religions, and therefore did not include Jews or Muslims, who were denominated separately (Freeman v Fairlie (1828) 18 ER 117; Williams v Bryant (1839) 151 ER 189; Miller v Salomons (1852) 155 ER 1036; it is also used to exclude Jews in Hawkins' Pleas of the Crown).  It might or might not include Hindus (it did in Omychund v Barker (1745) 26 ER 15 and Freeman v Fairlie (1828) 18 ER 117, but not in Miller v Salomons (1852) 155 ER 1036).  On the other hand, it could include Cree Indians (Bethell v Hildyard (1888) LR 38 ChD 220).

Pagans could also be historical.  Blackstone variously uses the term to describe the ancient Greeks, Romans, Druids, Saxons and Anglo-Saxons.  The "pagans" referred to in the old case reports were often classical Greeks and Romans.  They could be referred to with approval (Nurse v Yerworth (1674) 36 ER 993; Hill v Good (1674) 89 ER 111), neutrally (Of the Sufficiency and Disability of a Witness (1744) 22 ER 337; R v Millis (1844) 8 ER 844) or with disapproval (Swann v Broome (1764) 96 ER 305; Attorney General, at the Relation of the University of Cambridge v Lady Downing (1767) 97 ER 1).

So much for pagans - what of witches?  The Witchcraft Act 1736 made it illegal to claim to be a witch.  The statute was a product of Enlightenment rationalism, and superseded earlier legislation which had actually criminalised withchcraft itself.  The Act was repealed in 1951 with the enactment of the Fraudulent Mediums Act, following pressure from the spiritualist movement.  It was said, tongue-in-cheek, that the 1951 Act implicitly recognised the existence of non-fraudulent mediums.  The 1951 Act was repealed by a relatively obscure set of consumer protection regulations in 2008 (Consumer Protection from Unfair Trading Regulations 2008, Schedule 4).

Modern times

The term "pagan" remained pejorative in legal circles into the 20th century.

At the beginning of the 20th century, one case arose concerning an archaeological find made by ploughmen in Ireland.  The High Court found that the items discovered constituted treasure trove.  This in turn required it to dismiss the idea that they were votive offerings:
Further, the negative inferences against the defendants' theory are of considerable weight. Votive offerings to a pagan deity would be offered in such a way as to make the most display; no one seeking to propitiate an anthropomorphic deity, who like Baal might be engaged in hunting or sleeping, would be likely to conceal two of his gifts in the hollow of a third…. (Attorney-General v Trustees of the British Museum [1903] 2 Ch 598)
A few years later, a case on the technicalities of pre-1925 property law called forth this statement from Mr Justice Hamilton:
The view of Colonel Roberts, which appears to me to be somewhat superstitious and to attach an almost pagan importance to a hearth, was not pressed.... (Attorney-General v Reynolds [1911] 2 KB 888)
A few years later, the Court of Appeal had to deal with the case of a woman who had been trying to enter a burial vault.  The judgment contained this revealing passage:
I can only suppose that this mention of repairs and ventilation is an excuse to enter the vault for the purpose of using it as a place of private habitation where she can perform what she calls acts of piety which, whatever she may think, were at least as common among savage races as among the early Christians whose habits she thinks she is following. The Assyrian kings surrounded themselves in burial with their dead wives, concubines, horses, slaves and food for the time when they should awake in the other world; the Red Indians do the same, and the lady must not delude herself with the idea that she is following merely the practices of the early Christians; she is following the practices... of a very large number of pagan tribes, and cemetery authorities are justified in a cemetery of the year 1928 in stopping the lady from following those extraordinary practices which are quite out of touch with the habits of modern civilization.  (Hoskins-Abrahall v Paignton Urban District Council [1929] 1 Ch 375)
The term "pagan" has continued to be used in a basically pejorative sense right down to the present time:
  • One case in the early 21st century concerned a "Nigerian secret cult" known as the "Ogboni mafia".  Lord Justice Simon Brown stated: "Let me at this stage deal with Mr Blake's argument that the Ogboni mafia itself is properly to be considered a religion.... There are, he suggests, clear religious elements to their practices which merit such a characterisation: the worship of idols, sacrifice of animals and the like. This argument I would utterly reject. The notion that a “devil cult” practising pagan rituals of the sort here described is in any true sense a religion I find deeply offensive." (Omoruyi v Secretary of State for the Home Department 2000 WL 1480010 (CA))
  • Another case concerned a claim by a Hindu who wanted to build traditional open-air funeral pyres.  Lord Neuberger recounted a story from earlier in English legal history: "Dr William Price was a surgeon, healer, druid, vegetarian and self-declared infidel. The culmination of a life of controversy was when he attempted to cremate his five-month-old son.... This was considered the height of blasphemy and paganism, and it is said that the whole country was roused against him...." (R (Ghai) v Newcastle City Council [2010] EWCA Civ 59)
Echoes of the traditional Pagan/Christian dichotomy are also found in Mr Justice Peter Smith's judgment in the Da Vinci Code litigation, though these appear to be influenced by the subject-matter of the case (Baigent v Random House Group Ltd [2006] EWHC 719 (Ch)).

Finally, mention must be made of a few other recent cases which touch on paganism:
  • One case concerned a housing benefit claimant who refused to open a bank account on the grounds of his pagan beliefs: "He claims to follow the tenets of classical Greece; in Christian language, pagan beliefs. He claims to believe in the 12 Olympian gods in which Greeks in classical times believed."  (R (Spiropoulos) v Brighton and Hove City Council [2007] EWHC 342 (Admin))
  • Another case concerned sanitation facilities in HMP Albany, and involved a prisoner who registered as a Pagan, having previously been registered as a Muslim (Grant v Ministry of Justice [2011] EWHC 3379 (QB)).
  • Finally, one very sad case involved ritual sex abuse by two parents; two of their daughters were said to have run a pagan information website (R v DS 2005 WL 5249762).

Paganism and the law today

Discrimination on the grounds of religion or philosophical belief is now illegal in many cases.  The first relevant legislation to be enacted in England was the Employment Equality (Religion or Belief) Regulations 2003, which were introduced pursuant to an EU directive (2000/78/EC), and the applicable provisions are now enshrined in the Equality Act 2010.

The semi-official guide to the legislation produced by ACAS states:
Employers should be aware that these Regulations extend beyond the more well known religions and faiths to include beliefs such as Paganism and Humanism.
A similar line has been taken in professional commentary:
Religion or belief is defined as any religion, religious belief or similar philosophical belief. This definition includes lack of religion or lack of belief.... Less well-known religions and faiths such as paganism and humanism will therefore be included in the regulations. (Tolley's Employment Law Service, R2017)
Examples of 'philosophical beliefs' are Rastafarianism... spiritualism and the philosophical belief in life after death and psychic powers... belief in man-made climate change and the alleged resulting moral imperatives... and perhaps paganism and humanism.... (Tolley's Discrimination in Employment Handbook, 7.10)
The employment law service of the Practical Law Company (PLC) lists, with less than total accuracy:
religions covered by the Council of British Druid Orders, such as Druidry, Paganism and Wicca (Commonly-practised religions and beliefs in Britain)
On the other hand, the IDS employment law publication Race and Religion Discrimination is unclear as to whether whether non-traditional faiths are covered by the legislation.  The guide mentions paganism and Druidry alongside satanism, Rastafarianism and animal rights activism.

Paganism presumably also enjoys the protections against stirring up religious hatred that were inserted into the Public Order Act 1986 by the Racial and Religious Hatred Act 2006.

The European dimension

The European Commission of Human Rights (an inferior body to the European Court of Human Rights) found in 1977, in a case where a prisoner wanted to register his religion as Wicca, that "the applicant has not mentioned any facts making it possible to establish the existence of the Wicca religion" (X v UK (1977) 11 DR 55).  This case has more recently been described as "extreme" by the House of Lords (R v Secretary of State for Education and Employment (Williamson) [2005] UKHL 15).

In a 1988 case relating to the legality of midsummer celebrations at Stonehenge, the Commission declined to decide whether Druidism counted as a religion, and it decided the case on other grounds (Chappell v UK (1988) 10 EHRR 503).  Another Stonehenge case reached the Commission a decade later, and on that occasion the Commision appeared to accept implicitly that Druidism was a religion (Pendragon v UK (1998) HUDOC 19 October).

Ecclesiastical cases

One of the consequences of having an established church is that the laws of the Church of England form part of the laws of the land, and are enforceable both in special ecclesiastical courts and (occasionally) in the regular courts.  I have blogged about this elsewhere (here and here, in the context of the courts deciding to abolish Hell).

From the Victorian period onwards, the courts ended up getting embroiled in contemporary theological disputes - in particular, over how far it was permissible for the Church of England to use Catholic-style ornamentation, statues, liturgies, and so forth.  In one important case, the distinguished judge Lord Penzance found that it was contrary to Anglican doctrine to display statues and images, as the Roman Catholics did, to inspire people to worship God even if there was no question of people worshipping the objects themselves, as pagans supposedly did:
It was not, therefore, intended... by the use of the words "superstitious reverence," "adoration," or "worship," to convey only the limited idea of a figure or object itself worshipped like a Pagan idol. On the contrary, I understand these expressions as intended to embrace the far more extended conception of worship, adoration, or reverence paid to the deity in presence of or before those objects or figures. (Clifton v Ridsdale (1875-76) LR 1 PD 316, Arches Court of Canterbury)
This presumably meant that pagans were even worse than Catholics.  The above words would be quoted and re-quoted repeatedly in a succession of later cases in ecclesiastical court, extending as far as the early 21st century (e.g. In re St Lawrence, Pittington (1879-80) LR 5 PD 131 (Durham Consistory Court); Vicar and Churchwardens of Great Bardfield v All Having Interest [1897] P 185 (St Albans Consistory Court); Markham v Shirebrook Overseers [1906] P 239 (Southwell Consistory Court); In re St Peter St Helier, Morden [1951] P 303 (Southwark Consistory Court); In re St Mary the Virgin, West Moors [1963] P 390 (Salisbury Consistory Court); In re St Augustine's, Brinksway [1963] P 364 (Chester Consistory Court); In re Christ Church, Waltham Cross [2002] Fam 51 (St Albans Consistory Court)).

In another ritual case, the Dean of the Arches in the Arches Court of Canterbury linked paganism to the worship of idols:
In the first centuries of the Christian era the Church sternly prohibited the introduction of images, especially representations of our Lord, into churches. The reaction against Pagan idolatry made this almost inevitable. (Williams v Vincent [1925] P 1)
Finally, and most recently, the Chancellor of the Diocese of Oxford made a whimsical reference to pagan customs of offerings to the dead in a case relating to the removal of certain graves from a churchyard:
Indeed, forms of grieving change as the relatively recent practice of placing flowers by the roadside after a fatal accident amply demonstrates. It was to respond to such changing practices that I for the first time permitted the introduction of "toys or other similar ornaments"… in an endeavour especially to assist the grieving of children and those who have themselves lost children. None the less, what is acceptable to some is not acceptable to others…. Indeed, as I have noted recently in two churchyards, there are even those who apparently feel it is acceptable to leave full bottles of beer at the graves of their loved ones, although this is an entirely pagan practice. (In re St Mary the Virgin Churchyard, Burghfield [2012] PTSR 593).