On the legal concept of religion

AuthorC.G. Hall
PositionOf the Faculty of Law, University of the West Indies, Cave Hill Campus, Bridgetown, Barbados
Pages299-329
ON THE LEGAL CONCEPT
OF RELIGION
C.G. HALL*
Most States in the Commonwealth Caribbean continue to proscribe the
practice of
obeah.1
It may be asaumed that they do so on either of two grounds.
The first is that obeah men and women are essentially confidence tricksters
who extort money from clients by making bogus claims to remedy the ills of
those blighted by unrequited love or by enemies, or in employment, or
financial matters, or law suits and the like. The second is that in seeking to
harness the power of occult forces, obeah is rooted in sacanism and trades in
fear, superstition and revenge. Yet some historians have asserted that obeah is
neither of these, but rather "a social or religious construct," representing an
aspect of "religion and philosophic world views." Those who take this latter
position have argued, not unnaturally, that given its religious character,
regional laws proscribing obeah are rendered invalid by the provisions of State
constitutions guaranteeing freedom of conscience, including religion.3 Yet
*Of the Faculty of Law, University of the West Indies, Cave Hill Campus, Bridgetown, Barbados.
The present article is an amended version of Abbiornumenta Reflection upon the contemporary legal
concept of religion which was originally published in 1996 Cambrian L.R.
l E.g., Trinidad and Tobago, Summary Offences Act, Ch.
1
1:02 (Laws Vol. 3, 1980),
ss.43,
44, St.
Vincent and the Grenadines, Criminal Code, Cap. 124 (Rev, Ed, 1990),
ss.
285, 290; St. Christopher
and Nevis, Obeah Act,Cap.55 (Rev, Ed.
196l,Vol.1
);
Jamaica, Obeah
Act,
Cap.266(Rev. Ed. 1973,
Vol. 3), Vagrancy Act,
Cap.
404 (Vol. 18 ),s.4 (c); British Virgin Islands, Obeah Act (Rev, Ed. 1991,
Vol. 1); Dominica, Obeah Act, Chap. 10:38 (Laws 1990, Vol. 3); Guyana, Summary Jurisdiction
(Offences) Act, Ch.3:02 (Laws, Vol. 2), ss. 145. 146.
2
See,
e.g., Beddes, A History of Barbados (1990), p.52. See also Hurwin, Jamaica A Historical Portrait
(1971),
p.74 and Simpson, Religious Cults of the Caribbean (1970), p.69.
3
See,
e.g., Francis Alexis, "Anti-Obeah Laws and the Constitution", Advocate (Jamaica), 12 Nov.
1973;
Frances Clyne-Ceiry, "An Analysis of the Law Relating to Obeah in the Commonwealth
Caribbean", research paper, March 1975, UWI Law Library, Cave Hill Campus, Barbados; H.C.
McKenzie, "The Obeah Act
1898:
An Antithesis of Fundamental Rights in Jamaica", research paper,
June 1994, UWI Law Library, Cave Hill Campus, Barbados.
whether obeah is a religion has yet to be coherently argued and persistently
lobbied for. In this regard, the recent Minor Offences Act, 1998-1 in Barbados
is especially significant, for by that Act it is no longer a criminal offence to tell
fortunes, read palms or practice obeah. Doubtless, it is unlikely that Barbadian
legislators thus conceived obeah as a religion to be guaranteed constitutional
protection, though that is a possibility. More likely, it was simply determined
pragmatically that if the credulous wish to squander their money in obtaining
the services of purveyors of superstitious nonsense, the criminal law should not
intervene. But whatever the reason, the legalisation of obeah is a very significant
break from a tradition which may be traced through successive witchcraft Acts
in England,4 and so represents a proper attempt to refine the "language and
cultural symbols" of the former colonial power in order to attempt to "establish
the ideals and principles of an independent political
order."5
Meanwhile, in England itself the movement to establish wicca, witchcraft
as a religion continues. Thus, for example, in 1994 it was reported that a
research group at Bristol University had concluded that wicca is a "modern
religion", a status it has seemingly enjoyed in the U.S. since at least 1972 when
the Church and School of Wicca was acknowledged federally for tax exemption
purposes by the I.R.S. In 1994 also, the same sources revealed that at Leeds
University the Rev. Susan Leybourne had been appointed as: one of the
University's chaplains after requests by 40 undergraduate members of the
Occult Society. On appointment, Ms. Leybourne, who was ordained a pagan
priestess at the Circle University, Springfield, Louisiana, announced that she
felt that she could protect students from the forces of darkness and improve
their examination
performance.6
These two examples, from the United Kingdom and Commonwealth
Caribbean, serve to focus attention on the central question of what it is that
makes a belief system a religion for legal purposes. This question has, of course,
been well canvassed in the United States where courts7 and academics9 have
4 Montserrat and Cayman Islands have also abolished anti-obeah legislation.
5 See 5. McIntosh, "Constitutional Reform and the Quest for a West Indian Hermenuetics," (1997)
7
Carib.
L.R.
1,
115.
6 See the Daily Mail, 12 December, 1994 and The
Times,
12 December, 1994.
7 The standard cases are considered
passim;
but see also,
e.g.,
Smith
v.
Board
of
School
Commissioners
of Mobile
County
655 F, Supp. 939 (1987);
County
of
Allegheny
v
American
CM
Liberties
Union
492
U.S. 573.
109
S. Ct. 3086, 106 L. Ed. 2d 472 (1989);
Sands
v.
Morongo
Unified
School District
53
Cal. 3d 863, 809 P. 2d 809 (1991);
Wallace.
Governor
of Alabama
v.
Jaffree 472 U.S.38, 105 S. Ct.
2479, 86 L. Ed. 2d 29 (I985);
Lynch,
Mayor
of
Pawtucket
v.
Donnelly
465 U.S. 668, 104 S.Ct. 1355,
79L.Ed.2d
604(1984);
Edwards,
Governor
of
Lousiana
v.
Aguillard 482
U.S.
578, 107 S. Cr.
2573,
96L.Ed. 2d 510 (1987).
8 See,
e.g.
"'Toward a Constitutional Definition of Religion", 91 Harp.LR (1977-78) 1056; the

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