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Should Religious Studies Scholars Provide Expert Opinions in Court Cases?

05 Monday May 2014

Posted by in Critical Religion, University of Ottawa

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When contention arises in the courtroom, it is a common practice in many countries to call upon experts to help validate or discredit arguments, made either by the defendant or by the plaintiff. These experts, often professionals or scholars, can use the specialised knowledge gained in their field to clarify any points that may otherwise be misunderstood by the general public or the jury. In the case of conflicts dealing with religious freedom, a priest or other religious official may be invited to offer his or her expertise, but it is often the scholar of religious studies that is called upon. It is he or she that is responsible for provide a balanced, objective viewpoint on a variety of religious practices and beliefs, and to decide whether or not the practices or beliefs in question can be said to be “sincerely religious”.

While it is fairly standard to use scholars’ statements as expert opinions in court, I would like to suggest that this practice produces as many issues as it does advantages. Religious studies scholars can provide an unbiased viewpoint on matters relating to religion, but in doing so they are also participating in a system that reinforces the existence of “religion” as a sui generis category. They are made to speak about “religion” in an authoritative way, which in turn leads the general public to believe that “religion” is a benign descriptive label applied logically to groups of the same genus and not, as critical religionists argue, a historically and culturally specific term with political connotations and a term whose definition is still contested. However, the testimony of scholars of religious studies still serves a distinct and equalising purpose, and prevents the jury from being swayed by inaccurate stereotypes and unhelpful assumptions about particular traditions.

The issues that arise when a scholar of religious studies gives an expert opinion in a legal setting are varied. First, the audience are not specialists, and so the scholar must generalise and use “religion” in a general sense. This lends a notion of stability to the category of “religion”, and reinforces the idea that certain groups, practices and beliefs belong in the category, while others should be excluded. Second, validating whether or not something is or is not “religion” not only serves to reinforce the category in an abstract sense, but also has significant repercussions for those groups whose practices are dismissed as “not religious” and therefore cannot be protected by human rights provisions, such as that of Section 2(a) of the Canadian Charter of Rights and Freedoms.

In addition, the reliance on expert opinions in matters of “religion” implies that the scholar is more qualified to define a practice or belief as “religious” than the practitioner themselves, when the matter of “religion” is otherwise viewed as a personal and subjective decision by the court. The Supreme Court of Canada made a statement to this effect in the landmark case Syndicat Northcrest v. Anselem (2004):

The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions.

Curiously, although the court in Anselem claims that “it is inappropriate to require expert opinions”, expert opinions are still sought out in the very same case. This is because, as religious studies scholar and former lawyer Dr Lori Beaman writes in her book Defining Harm: Religious Freedom and the Limits of the Law (UBC Press, 2008), “[t]he expert voice is heard in religion… and is perhaps most visibly hegemonic in the collusion between religion and law.” (48)  It is these experts that “act as gatekeepers in the discursive construction of religion”, determining the boundaries between legitimate and illegitimate religion. (48) It has been historically deemed important by courts in Canada to determine that a “religious” belief is sincere, and not capricious or artificial. Therefore, the voice of the scholar of religious studies has the power to legitimise particular groups as “truly religious”; yet this decision is made with an illusion of objectivity, using a contested and unstable category as its basis.

Expert opinions are, however, still useful in the case of practices that while sincere, are easily misunderstood or seen as strange. This is often the case with new religious movements or syncretic religions. I will use another Canadian case to demonstrate this advantage. In the Supreme Court of Ontario case R v Welsh (2007), the court attempts to determine whether or not Obeah (a collection of folk practices, religion and sorcery originating in West Africa and flourishing in the Caribbean) can be considered a belief system or “religion”. The entire case rests on this decision, as the claimant can only argue that the actions of the defendant infringed on their right to freedom of religion if their practices are validated as “religion”. Helpfully, court aligns itself with the stance in Anselem, and sees itself as “reject[ing] a narrow, overly-precise definition of religion in favour of a broad perspective that could conceivably capture an array of beliefs that, like Obeah, fall outside of well-recognized religious boundaries.” (Para 28) The court recognizes, with the help of expert opinions, that “Obeah is a religious belief system that meets the Supreme Court definition of such in [Anselem] and thus warrants s.2(a) protection.” (Para 29)

In light of this information, should Religious Studies scholars provide expert opinions in court cases relating to religious freedom? I am still unsure what is to be done with the practice. While the instability of the category of “religion” gives the scholar (and thus the court) the ability to validate or dismiss practices based on a contested definition, the use of expert opinions can also be (and often is) beneficial to lesser-known traditions, and even to groups who regularly experience discrimination or prejudice, such as Islam. To cease the practice would leave these groups in a vulnerable position, but to continue advising the court under the illusion of objectivity may lead to misguided decisions. The issue is complex and multi-faceted, and it is my intention to treat the topic more extensively in my further research.

The Bible and Homosexuality – Guidance for the Perplexed

16 Monday Jul 2012

Posted by in Critical Religion, University of Stirling

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Recently I came across a new book that I thought shed some useful light on the issue of homosexuality from a Hebrew Bible perspective. The book is The Bible Now: Homosexuality, Abortion, Women, Death Penalty, Earth, by Richard Friedman and Shawna Dolansky. In fairly short space it sets out a summary of most of the major arguments about specific Biblical references to homosexuality in the Hebrew Bible, those Jewish scriptures which overlap to a considerable extent with the Christian Old Testament.

Firstly they are very clear that the law in the Biblical book of Leviticus (notably, Lev 18:22 and Lev 20:13) cannot simply be wished away (p. 26). So for those who regard the Hebrew Bible as their moral pole star, the prohibition on (male) homosexual behaviour in the Hebrew Bible has to be addressed. But at the same time, they argue that we cannot ignore the context of these references either. It is a very different context to that of most contemporary western readers. For one thing, people in the ancient near east did not make the distinction between homosexuality and heterosexuality as if it were a distinction between equal concepts. Heterosexuality was the norm across all these cultures. Homosexuality was not – as it is today in many parts of the world – a life-style choice or a marker of individual identity.

What these biblical prohibitions on homosexual behaviour seem to reflect in fact, is a widespread construction of sexual relations as relations of power; sexual encounters position each partner hierarchically according to whether their role is active or passive. So, for example, women are suitable sexual partners for men because their active domination by men has already been mystified in terms of their essentially inferior status. For the same reason, Friedman and Dolansky suggest, some encounters between men have also been socially condoned by association with this active/passive polarity.

The form of socially sanctioned homosexuality we know most about in the Western world – pederastia (boy-love) – existed as a more or less formalised system in Athenian society in the 6th to the 4th centuries BCE (p. 32). In this case, an older aristocratic male would court a young man of good family “much in the way a man might court a future wife” (p. 33), becoming his mentor and teacher, drawn by an attraction that was erotically charged even if not always acted upon. But tellingly, according to Plato (Symposium, 8,21), the young man – the eromenos – while respectful of his mentor – the erastes – was supposed to remain detached from his sexual passion. And once he reached adulthood and became his social equal, any continuation of a (passive/feminine) sexual relationship became shameful. In a similar way, Friedman and Dolansky look at references to homosexual acts between men in a number of other near eastern contexts containing similar associations between social status and sexual acts between men. (It is also interesting that Friedman and Dolansky insist that there is no prohibition on female homosexual acts in the Hebrew Bible.)

In other words, homosexuality, before the modern era, was always framed by considerations of social status and this forms the wider cultural background to the prohibtions on male homosexuality in the Hebrew Bible and the Christian Old Testament. However there is also an important difference; male homosexuality is absolutely prohibited in Leviticus 18 and 20. Friedman and Dolansky suggest that this has to do with the fact that the legislative text of which these prohibitions form a part – the Holiness Code (p. 34) – reflects a particular theology of the land. All the people who settle on God’s land, both Israelites and aliens, are bound by its ritual and moral law: “In the Holiness Code, there can be no homosexual acts at all in Israel, since by cross-cultural perception such intercourse would necessarily denigrate the passive partner and violate his equal status under God’s law” (p. 35). Even the servant and the foreigner in Israel are equal in God’s land. And, of course, it remains the case that what is seen as immoral in homosexual acts between men is not the nature of male homosexual desire in itself, but the potential violation of a social equal – an act that would pollute God’s land (p. 35).

In relation to the issue of homosexuality, the authors of The Bible Now, come down fairly and squarely in favour of reading the biblical text carefully and in line with principles of critical biblical scholarship. These principles are derived from the so-called ‘higher criticism’ developed first by European, principally German, University scholarship in the eighteenth and nineteenth centuries. These principles have formed the basis of most reputable western biblical scholarly interpretation since then – whether it is Jewish, Roman Catholic or Protestant. In other words, they are concerned with scientific approaches to history – what here is mythology and what can be cross checked with other evidence and source material from the same period and region. They take due care to learn and understand the original languages of the Bible so they can answer the question, what did the words mean in the original context and how does that differ from the translation? They discuss the genre and style of writing, conscientiously distinguishing, for example, between poetry, prose and law: “It is is one thing to tell a story about something. It is another to write a poem about it. And it is a very different thing to write a law that says ‘Thou shalt no do it!’” (p. 1). And finally, they recognise that all readers come to the text with an agenda, a desire to know God’s truth or to find the basis of a moral norm or to reveal the gendered, colonialist assumptions of previous readers. No reading is neutral; hermeneutics or the interpretation of scripture must scrupulously attend to the who, when and where of all readers.

This useful treatment of homosexuality in the Hebrew Bible ends on a timely note of caution “Our purpose is not to talk you into one side or the other in these matters. Our purpose is to reveal that this is not a matter for amateurs, and it is not easy. You cannot just open a Bible – especially in translation – and find an obvious answer.” (p.39) Friedman and Dolansky, both University professors and career academics are employed to do the work of the scholar and this is a lifelong task. This relatively short and accessible treatment of homosexuality in the Hebrew Bible represents the distillation of an extended period of individual training and reflection and an even longer period of institutional development within wider communities. If we cannot any longer sponsor the development of this kind of professional expertise and learning – and in the UK, University departments of Theology and Biblical Studies are in rapid decline – it is going to be much harder in future, to make sense of our cultural inheritance or in any sense, to profit from it.

Mission studies, mission history, and the language of religious conversion

23 Monday Jan 2012

Posted by in Critical Religion, University of Stirling

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For those of us researching mission history, as much of my own research could appropriately be characterised, there are recurring questions about how to approach the issues raised.  Coming as I do from a liberal Enlightenment university tradition, it is out of question for me that the study of mission history would be connected to the pursuit of mission activity in the sense of proselytism. I am far from alone in this: Andreas Feldtkeller is one of many who have argued coherently against this confusion (e.g. he does this elegantly and succinctly in Sieben Thesen zur Missionsgeschichte, series: Berliner Beiträge zur Missionsgeschichte, Berlin, Heft 1, September 2000).

However, these issues do still intrude.  When, a few years ago, I initiated the Christians in the Middle East research network, now run with colleagues from Balamand and St Andrews, several enquiries came from individuals and organisations who were seeking to ‘convert’ Muslims in the Middle East to (a very evangelical kind of Protestant) Christianity: some sought an academic connection with us, others wanted to use our mailing list to promote their work; one enquirer even suggested we might want to make use of his staff in the region as ‘agents on the ground’ to promote our (supposedly) evangelical mission.  Although one of the areas we are interested in is the study of missions from, to, and within the Middle East, especially historically, pursuing such activity today is emphatically not what the CME network was created for; these enquirers were rebuffed, politely but clearly.

Nonetheless, such interventions raise interesting questions about conversion and what is meant by this use of language. Specifically, we might ask what the proposed conversion is really from and to that these people are now trying to pursue, and that missionaries in the past have sought to bring about.

Simplistically, in this instance, we can point to a change from adherence to a tradition called Islam, to a tradition called Christianity. Indeed, such language of Christianisation is the dominant model for a great deal of mainstream church mission activity around the globe from the 18th into the 20th century; now this tends to be something that is pursued only by certain fringe groups and smaller denominations. In this model, existing beliefs were to be repudiated and replaced with new beliefs – the simplicity of this language conveys the simplicity of the process as many missionaries initially saw it in the past (and some still do so today).  After all, many missionaries reasoned, the Greek New Testament used simple language to describe the transformation that the new believers in the gospels and Pauline letters were to undergo: metanoia is the key term here. This was used in the Septuagint (a Greek version of the Old Testament/Hebrew Bible) to mean ‘after-thought, change of mind, repentance’ and is used in the New Testament to denote ‘repentance from sin’.  What was argued on this basis is that the ‘former life’ of the convert was one of sin, and only turning away from that enabled salvation. This becomes a kind of ‘re-enculturation’: the complete abandonment of existing patterns of belief and behaviour and the complete adoption of new patterns of belief and behaviour (for a brief discussion of the problems with the term ‘belief’, see my posting here).

Of course, such ‘re-enculturation’ is impossible.  Enculturation, as a process of socialisation and hegemony-production, is often defined as enabling competent engagement in a specific cultural context; further encounters with other cultural norms move into what is commonly called acculturation.  There is a fluid boundary between these two, ever more so as discerning specific cultures without resorting to essentialist distortions becomes increasingly difficult in our globalised world (such distortions easily elide into racism: I am thinking of conservative writers such as Niall Ferguson, Samuel Huntingdon and others).  In the 19th century, missionaries – representatives of European global dominance, whether they felt this gave them power or not – could perhaps still convince themselves that they were engaging with an alien culture when they left Europe, and that converts should follow their particular understanding of metanoia.  However, as I have shown in the Palestine context (and many others have done so in other contexts), any conversion that might have taken place was always a process of acculturation: converts maintained significant elements of their enculturated norms, and amended or added to these in taking on the missionaries’ new norms.  (Incidentally, I argue that despite the asymmetrical power relationships, it was the missionaries themselves who underwent the most significant changes in the missionary encounter: a process of reculturation.)

What does this mean for the question of conversion from and to?  If, as I have argued in an earlier blog posting, we cannot usefully speak of different ‘traditions’ in a world religions paradigm then questions of conversion also become much more complex (scholars such as Suzanne Owen and our own Tim Fitzgerald have also argued this in other contexts). Following the argument above, we can say that ‘conversion’ is not so much about moving from one enculturated norm to another (what I have loosely called ‘re-enculturation’), but acculturation, and consequently, the language of ‘religious conversion’ becomes rather meaningless.

In conclusion, the most appropriate usage of the term ‘religious conversion’ seems to be – at best – as a descriptor of certain historical attempts to pursue a particular strategy of Christianisation, attempts that we should be glad are largely behind us.

Some thoughts on body shame and plastic surgery…

07 Monday Feb 2011

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There is little if anything that is straightforward or indeed ‘natural’ about body. It is a cultural canvas constructed through metaphors: from Socrates’ and Plato’s view of it as a prison for the soul, to the Apostle Paul’s invocation of Christian communities as the body of Christ on earth; from Baz Luhrmann’s description of the body as ‘the greatest instrument you’ll ever own’ (provided you wear sunscreen) to the feeling when struggling with a bad cold that the body is a battleground – a microcosmic staging of the forces of good pitched against the forces of evil; from the ambiguities of cyborgs to the ambiguities of posthumanist bodies. The body is a discursive territory occupied or landscaped by narratives about gender, family honour, duty, devotion to God or state, individual identity, communal belonging, worthiness and desirability, power and pollution.

Situated in the ‘first world’ we have certainly inherited some very traditional Christian and colonial narratives that have acted to privilege disembodied masculine intellect and spirit over material immanence leading to ambivalence (Jasper, in Hass, Jay & Jasper, 2007) guilt and shame (Clough, 2011) about our embodiment. It isn’t, perhaps, very surprising then that ‘first world’ bodies have been so successfully shamed, that multi-billion pound industries (Berliet, Vanity Fair, February 2009 – Plastic surgery confidential; Orbach, 2009) have been able to take advantage of this sense of bodily inadequacy. Neither is it such a surprise that the majority of people who look for help or improvement through cosmetic surgery continue to be women. In the Guardian newspaper (Friday, 4 February 2011), the people’s panel feature quotes ‘Miss Wright’ who admits that after one successful procedure, costing over £1K she is ‘hooked’ by the ‘carrot of a promise that I might look my best ’ or that ‘more surgery will make me better somehow’.

Of course, techniques for producing the ‘better’ body from eye liners to clitoridectomies are hardly new. What is thought-provoking here however, is that we seem to be able to reproduce intense feelings of bodily shame – such that people risk their health and their lives in an often unsuccessful attempt to escape it – even within cultures that no longer see themselves as dominated by so-called ‘religious’ ideologies such as Christianity (are they any more ideological than ‘secular’ ideologies such as freemarket capitalism?). Susie Orbach illustrates one neat technique for reinventing shame through the rhetorics of empowerment (Bodies, 2009, 83). The flip side to the idea that ‘we’re worth it’, is the pressure to exercise our power to take what we apparently deserve. The failure to alter ourselves becomes a new sign of self-neglect: ‘people will soon ask why you haven’t remodelled your body, as though it were a shameful old kitchen’!

Christianity has undoubtedly played a role in making us uncomfortable in our skins but it can’t be held responsible for the whole of this more recent change. A growing sense of entitlement and/or pressure to achieve a beautiful body is also surely implicated in the recent massive increase in procedures performed by cosmetic surgeons and the willingness of people to demand and buy them. Of course it must be said that the development of surgical techniques and the greater availability of cosmetic treatments aren’t all bad. And for people dealing every day with the burden of disfigurement, whether as a result of something like bodily dysmorphic disorder, or of accident, disease and war this kind of treatment could be, in a very real way, a ‘God-send’. Nevertheless whilst cosmetic surgery has achieved some dramatic, life changing effects, it seems very unlikely that the overall market growth in the area will be balanced by an equally widespread reduction in feelings of shame or emotional pain.

Jasper, Alison, 2007, ‘Body and Word’ in Hass, Andrew, David Jasper, Elisabeth Jay (eds), The Oxford Handbook of English Literature and Theology. Oxford: Oxford University Press. pp. 776-792.
Orbach, Susie, 2009, Bodies. London: Profile Books.
Clough, Miryam, 2011, ‘Shame and Sexual Ambivalence’, Unpublished thesis.