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The fact that the criminal law in England and Wales continues to afford protection to spouses who conspire together to commit crime is considered by many to be an anachronism. That a person cannot be guilty of conspiracy if the only other person with whom he or she agrees is his or her spouse, is to be found in section 2 of the Criminal Law Act 1977. The origins of the rule are said to be based on biblical principles pertaining to marriage. The difficulty with that is that the concept of marriage has changed significantly over time, which raises the question of whether or not the existence of the exemption can today be justified. In R v Yilkyes Finok Bala and Others  EWCA Crim 560, the Court of Appeal was faced with the question of whether or not the legislative exemption applied to those who were party to a polygamous marriage. While acknowledging that there are arguments in support of the proposition that the exemption is outmoded, the Court of Appeal nevertheless interpreted the statutory provision in such a way so as to encompass parties to a polygamous marriage recognised under English law as valid. By virtue of the Civil Partnership Act 2004, the exemption was extended to cover civil partners. The expansion of the exemption is curious in the light of prevailing attitudes towards the applicability of the exemption at all in modern times. Furthermore, other statutory provisions (relating to analogous matters) have either been enacted or repealed to reflect present-day understandings of how the issue of marriage interacts with the criminal law. Yet, for reasons which are not altogether clear, the spousal exemption vis-à-vis the criminal offence of conspiracy remains in force.
Not a single day goes by without Pope Francis making charity and mercy – central characteristic traits of any Christian – the pivot of his sermons, exhortations and proclamations, formal and informal alike. The last holy year, concluding in November 2016, which explicitly featured the motto of mercy, offers a welcome opportunity for the canonist to contemplate the relationship between mercy and justice. Certainly, there is no lack of warning speeches and auguries against the oversimplification of the canonical norms through invoking a false understanding of an imperative of indefinite mercy. To do so would be to neglect the crucial and central commandment of justice, which ensures both legal certainty and an equal treatment of similar cases. The papal address given to the Tribunal of the Roman Rota in 2009 may serve as an eloquent example. In his address Benedict XVI emphasised the interrelation of love (caritas) and justice (iustitia), but at the same time explicitly cautioned against over-pastorally motivated charity as far as the application of the law is concerned:
Charity without justice is not charity, but a counterfeit, because charity itself requires that objectivity which is typical of justice and which must not be confused with inhuman coldness. In this regard, as my Predecessor, Venerable Pope John Paul II, said in his Address on the relationship between pastoral care and the law: ‘The judge … must always guard against the risk of misplaced compassion, which could degenerate into sentimentality, itself pastoral only in appearance.’
There is sufficient reason, therefore, to consider once more how mercy and justice relate to one another.
There is no universal definition of religion under English law. Instead, different definitions have been developed by courts and tribunals in relation to different religious rights. Although there have been moves towards the harmonisation of these different definitions, recent decisions have reversed that trend. This article explores for the first time how this has led to a confused and contradictory case law. It begins by surveying how religion has been defined in registration law, charity law, human rights law and discrimination law, the moves towards harmonisation and the counter-tendencies in the recent decisions. It places the recent decisions within their broader legal context and points out a number of contradictions and uncertainties. Arguing that a universal definition of religion under English law is now needed, it synthesises the case law to identify the elements of a universal definition that already exist. The article examines how these can be refashioned in order to remove inconsistencies that exist in different areas of law. Drawing upon insights from the sociology of religion, the article concludes by proposing a new definition.
This article provides a general account of the universal law of sanctions in the Roman Catholic Church. The crisis of the Catholic Church caused by clergy sexual abuse of minors has revealed, among other things, the widespread well-intentioned but naïve inclination to resort to penal law as opposed to any theology of mercy and forgiveness. Although the author argues that penal law has a proper place in the Catholic Church, he considers that in a voluntary community that shares a homogeneous system of moral values without strong penalties involving deprivation of liberty – a community like the Catholic Church – moral and administrative sanctions could be more effective than penal sanctions. A distinction between administrative sanctions and penal sanctions, and therefore between administrative tribunals (should they be established) and penal tribunals, is highly recommended.
Hate preaching is capable of constituting both hate crime and hate speech, lies at the centre of many religions’ understanding of the manifestation of their religion, and frequently raises the contentious issue of regulation of the use of sacred scriptures. This brief article explores the regulation of hate preaching by criminal law, discussing the particular problems posed by oppositional religious speech, before concluding with suggestions for a number of ways to reduce these problems.
An ecumenical group of experts in church law produced a Statement of Principles of Christian Law based on a comparative examination of the internal regulations of their respective churches. This article examines the detail of the Statement from the point of view of the regulations and practice of Quakers in Britain and concludes that, based as it is on a Trinitarian, sacramental view of ‘the Church’, while there is much in it with which Friends – and members of other non-sacramental, non-hierarchical denominations – would agree, there is also much which has little resonance for them.