Book Review: Religion, Charity and Human Rights

Religion, Charity and Human Rights, by Kerry O’Halloran, Cambridge, U.K.: Cambridge University Press; 2014 ISBN: 978-1-10702-048-1

Kerry O’Halloran’s 2014 book, Religion, Charity and Human Rights, provides a wide-ranging overview of the difficult issues arising at the interface of religion, human rights law, and the law of charities. While the work does not make a strong overarching claim about the nature of the relationship between charity law and religion, Religion, Charity and Human Rights may be a valuable resource for those who wish to contrast the legal paradigms affecting religious charities in major common law jurisdictions.

The 514-page volume is divided into three major parts. Part One, entitled “Background,” provides the reader with an introduction to the concepts of religion and charity as well as associated concepts, such as religious doctrine, canon law, altruism, secularism, and theocracy. It reviews the key features and landmark developments of the common law charities tradition and then traces some of the broad historical and social trends that have affected the respective roles of religion and charity in society. The final chapter of Part One, “The International Context,” explores how international processes of law reform in the areas of charity law and human rights law have affected the relationship between religion and charity.

O’Halloran introduces a number of interesting issues and arguments in the background chapters of his book. For example, he argues that there are multiple modern threats to the traditionally secure place of religious charities in society, including the development of new legal forms of nonprofit activity and the spread of human rights norms and universal welfare schemes. It is difficult to draw general conclusions about complex phenomena such as religion, government, and charity, however, and that difficulty is apparent at various points in Part One. Sometimes it manifests itself in controversial “universalist” descriptions of religion, such as O’Halloran’s assertion that “the point of religious doctrine is to assure members that the one true way is as ordained in their set of beliefs and require them to demonstrate this and seek to convince others…” At other times, it leads the author to equivocate about matters, such as the proper role of the state in relation to religion (pp. 26-7). O’Halloran’s technique of inserting sub-headings every few paragraphs will be helpful to a reader who wishes to quickly pinpoint a selected issue from within the large amount of material covered by the book. However, I would have preferred fewer sub-headings in the introductory and concluding chapters, in order to allow the development of a consistent line of argument.

Part Two of Religion, Charity and Human Rights, in which O’Halloran examines the inter-relationship between canon law, religion, and charity law in six jurisdictions, is a thought-provoking read. O’Halloran surveys the state of the law in England and Wales, Ireland, the United States, Canada, Australia, and New Zealand, drawing attention to the growing fractioning of the common law charities tradition as it relates to religious charities. The various ways in which different jurisdictions define “religion” provide a good illustration of this fractioning trend. As O’Halloran notes, the American courts have long embraced a broad conception of religion, and the IRS has acknowledged that “religion” must be interpreted to include beliefs that do not encompass a Supreme Being.[1] England and Wales have recently moved closer to this position, enacting a statutory definition of charity that encompasses the advancement of polytheistic and non-theistic religions.[2] Australian and Irish charities statutes do not define religion, on the other hand, though the Irish Act provides that a charitable gift for the advancement of religion is to be construed in accordance with the tenets of the religion concerned.[3] As O’Halloran rightly observes, these divergent approaches to the “religion” that charities may advance are likely to strain the cohesiveness of the common law charities tradition in years to come.

O’Halloran is arguably at his best when writing about Ireland, where strong adherence to the Roman Catholic tradition has taken the country down a somewhat unique charity law path. Ireland had its own charity law statute in the nineteenth century, which, unlike the famous Statute of Elizabeth, identified the maintenance of religious ministers as a charitable use. The doctrine of superstitious uses also never existed in Ireland, so that gifts for the saying of masses were always charitable gifts (p. 227). O’Halloran argues that Ireland’s religious heritage continues to influence the law of charities in that country; under the Charities Act 2009 (Ir), a gift for the advancement of religion is presumed to be of public benefit “unless the contrary is proved,” and the regulator may not decide that a gift for the advancement of religion is not of public benefit without the consent of the Attorney General. These provisions were not in force at the time of writing, but have since come into effect.[4]

It is always thought-provoking to get an outsider’s take on one’s own community, and from that perspective readers of Religion, Charity and Human Rights may find the discussions of their home jurisdictions to be of considerable interest. As a Canadian reader, I was intrigued by O’Halloran’s suggestion that Canadians may have “a more attenuated sense of civic responsibility” than the citizens of other countries, and agreed with his assessment of Canada’s lack of success in building a coherent government-voluntary sector relationship. There are certain aspects of the “Canada” chapter’s legal analysis with which I would take issue, however. There are some unfortunate inaccuracies in the identification of relevant statutory provisions.[5] More substantively, O’Halloran’s assumption that “little consequence…flow[s] from whether adjudication on a particular human rights issue occurs at a federal or provincial level” (p. 354) in Canada is questionable. For charities, the question of whether a human rights issue arises under the Canadian Charter of Rights and Freedoms or one of our many human rights statutes matters, in part, because each of these instruments has a different scope of application, with the Charter applying only to “government” and entities that perform governmental activities, and the provincial statutes setting out varying standards of exemption for charitable or religious organizations. While O’Halloran is right to depict constitutional norms, human rights statutes, and the law of charities as related phenomena in Canada, therefore, the case law leaves those relationships more unsettled than O’Halloran’s analysis would suggest.

In an age when conflicts involving religious charities are gaining ever-increasing prominence, it is important to grapple with the relationship between religion, charity law and human rights law, and to understand the different ways in which modern legal systems balance the competing demands of each. O’Halloran’s latest book does not offer its readers a clear normative vision of the proper relationship between these complex concepts. Nevertheless, for readers seeking an overview of the difficult issues arising at the interface of religion, human rights law, and the law of charities in major common law jurisdictions, Religion, Charity and Human Rights is likely to provide a valuable resource.

NOTES

[1] Treas Reg 1.501©(3)-1(d), cited in O’Halloran at 300.

[2] Charities Act 2011, s 3(2)(a).

[3] Charities Act 2009 (Ir), ch 3

[4] Charities Act 2009 (Commencement) Order 2014 (Ir).

[5] The Canadian Income Tax Act defines a charitable organization/organisme de bienfaisance in section 149.1(1) [rather than section 149(1)], and the Interpretation Act provisions on bijuralism are in section 8.1 [rather than 8(1)].

Kathryn Chan is an assistant professor in the Faculty of Law at the University of Victoria.