WHAT IS RELIGION?

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Copyright Ian Ellis-Jones 2007 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.

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WHAT IS RELIGION?

  1. 1. WHAT IS RELIGION? by Ian Ellis-Jones Honorary Minister, Sydney Unitarian Church 8 April 2007Excerpted from BEYOND THE SCIENTOLOGY CASE: TOWARDS A BETTER DEFINITION OF WHAT CONSTITUTESA RELIGION FOR LEGAL PURPOSES IN AUSTRALIA HAVING REGARD TO SALIENT JUDICIAL AUTHORITIESFROM THE UNITED STATES OF AMERICA AS WELL AS IMPORTANT NON-JUDICIAL AUTHORITIES. A thesissubmitted by Ian Ellis-Jones in fulfilment of the requirements of the postgraduate degree of Doctor of Philosophy in Law(C02028), Faculty of Law, University of Technology, Sydney. Year of Submission of Thesis on Completion of Examination:2007. Year of Submission of Thesis for Examination: 2006. Copyright © Ian Ellis-Jones 2007. All Rights Reserved. DEFINITION OF RELIGION “Religion” means an amalgam (but not necessarily an organized or coherent system)N1 of faith-based ideas, beliefs, practices and activities N2 which: a. include doctrine, dogma, teachings or principlesN3 containing a world view or general picture of the worldN4 and otherwise pertaining to that which is perceived to be of ultimate value or importanceN5 and worthy of reverence, worship and adoration,N6 whether or not involving a belief in the supernatural (that is, a belief that there is more than one order or level of reality),N7 b. include a set of sanctioned ideals and values in terms of expected ethical standards of behaviour and moral obligations,N8 and c. are supported by a body of persons (consisting of one or more faith-based communities)N9 established to give practical expression,N10 at times communally and otherwise on an individual basis,N11 to those persons’ respective understandingN12 of those ideas, beliefs, practices and activities, being ideas, beliefs, practices and activities which meet the description contained in the Schedule set out below.
  2. 2. Schedule1. The ideas, beliefs, practices and activities must be centrally and manifestly basedN13 upon faith (that is, belief and trust)N14 in a Power, Presence, Being or Principle,N15 whether theistic or otherwise,N16 that is perceivedN17 by members or adherentsN18 of the body to be not only real but also permanent, non-temporal, everlasting, self-existent or all-pervasiveN19 and to which all else is subordinate or upon which all else is ultimately dependent,N20 whether or not the ideas, beliefs, practices and activities are capable of proof or disproof, or are, or are otherwise perceived by members or adherents to be, supported by reason.N212. The ideas, beliefs, practices and activities must be directedN22 towards a celebration of that which is perceived by members or adherents of the body to be not only ultimate but also divine, holy or of sacred value (as opposed to that which is considered to be secular or profane)N23 in the sense of being awe-inspiring and worthy of reverence, worship or adoration,N24 such ideas, beliefs, practices and activities involving a concomitant sense of the numinousN25 or concomitant notions or ideals of transcendence or immanence (or both),N26 whether in a theistic sense or otherwise.N273. The ideas, beliefs, practices and activities must include doctrine, dogma, teachings or principlesN28 that: a. are to be accepted on faith and on authority, including but not limited to the authority of reason, conscience and experience, irrespective of whether or not the doctrine, dogma, teachings or principles are binding on members or adherents of the body who may or may not be allowed freedom of interpretation and expression,N29 b. pertain to the status, role and importance of the Power, Presence, Being or Principle referred to in Paragraph 1, and c. contain a world view or general picture of the world,N30 whether theological or cosmological,N31 and whether or not expressed in the form of a creed, an affirmation or a statement of principles,N32 which is perceived by members or adherents of the body to be a true description of realityN33 and which describes or otherwise seeks to delineate, often by the use of myth, legend, fable, allegory, symbol, image, narrative and storyN34 (whether or not so perceived by members or adherents of the body)N35 contained in writings that are considered to be divinely inspired, sacred or otherwise of supreme or considerable importance,N36 the origin, place, growth and development of the individual, the powers resident in the human soul, psyche or person, and the destiny of the individual, the latter often being expressed in salvific terms.N374. The ideas, beliefs, practices and activities must include a set of sanctioned ideals and values (usually involving an explicit or implicit code of conduct, whether in the form of general principles, guidelines or prescriptive rules) in terms of expected ethical standards of behaviour and moral obligations.N38
  3. 3. 5. The ideas, beliefs, practices and activities must include various experientially based forms, ceremonies, customs, usages and practices which: a. ordinarily involve such things as liturgy, litanies, ritual, prayer, meditation, cultivation practices or other spiritual exercises or techniques as well as various ordinances or observances including but not limited to the dispensation of sacraments and the celebration of rites of passage or renewal),N39 b. may be structured or unstructured,N40 c. are perceived by members or adherents of the body to be of spiritual or transformative power (whether inherently so or in a symbolic or allegorical sense) and of benefit (whether spiritually, mentally or physically) to such persons, others or the world in general,N41 and d. often take place on a regular basis in the context of services or meetings conducted in buildings or placesN42 owned or otherwise occupied and used by the body for the purposes of public worshipN43 or otherwise giving practical expression to their faith (including but not limited to making contact with or otherwise causing to be made manifest the Power, Presence, Being or Principle)N44 as well as for other associated purposes including but not limited to teaching, instruction and propagation of the faith.N456. The ideas, beliefs, practices and activities must manifest in the form of an identifiable system of interpersonal relationships: a. by means of which members and adherents of the body are bound spiritually, socially, culturally or otherwise ordinarily within the framework of an overall organizational structure,N46 with a resultant sense of belonging to the body itself or to something otherwise larger than themselves,N47 and b which is recognizable to persons outside the body by reason of certain external indicia such as places of worship, symbols, clergy, distinctive clothing, festivals, and distinctive customs and practices.N487. The ideas, beliefs, practices and activities must not include ideas, beliefs, practices and activities that constitute a sham religionN49 or otherwise involve what are essentially political, sociological, philosophical or economic considerations or views or a merely personal code of morality or set of ethical standards in no way related to or otherwise based upon faith in a Power, Presence, Being or Principle to which all else is subordinate or upon which all else is ultimately dependent.N50
  4. 4. Associated Interpretative ProvisionsFor the purposes of the definition of “religion” as well as the Schedule:a. the question of whether a particular system of ideas, beliefs, practices and activities is a religion is to be decided using an objective approach without completely disregarding the subjective perceptions of members or adherents of the body in questionN51 to the extent that the presence of such perceptions is otherwise specifically required by the definition and its presence permits or assists in the appreciation or recognition of the particular system of ideas, beliefs, practices and activities being religious in the sense otherwise described in the definition;N52b. the absence of any one or more of the matters that are declared by the definition to be often, ordinarily or usually present where there is a religion are to be weighed in the balance along with all other relevant matters for consideration in deciding whether a particular system of ideas, beliefs, practices and activities is a religion; N53c. self-identification by a body of persons that its particular system of ideas, beliefs, practices and activities is or is not a religion is not necessarily irrelevant to the question of whether or not that system of ideas, beliefs, practices and activities is a religion but is nevertheless not determinative of the question;N54d. a system of ideas, beliefs, practices and activities is a sham religion, and thus not a religion for the purposes of the definition, if, objectively assessed, the sole or dominant purpose of the system or the body of persons ostensibly established to give practical expression to the system is either to mock an established religion or to achieve some extraneous purpose not traditionally associated with religion;N55e. the truth or correctness of the whole or any part of a particular system of ideas, beliefs and practices is irrelevant in determining whether the system is a religion or a sham religion.N56
  5. 5. Notes [These notes are explanatory notes and do not form part of the definition or its associated provisions set out above.]N1 At the very least, there needs to be an “amalgam” - my interpolation - of faith- based ideas, beliefs, practices and activities. Durkheim would require that the system be “unified”, but I think that’s expecting too much of any given religion. The words “but not necessarily an organized or coherent system” have been inserted for more-or-less the same reason. Belief systems evolve slowly over time, and are often incoherent. Some are even quite disorganized (eg Taoism).N2 The words “ideas, beliefs, practices and activities” are intended to be wide in their application. An “idea”, when “accepted”, becomes a belief. The difference between a “practice” and an “activity” is somewhat elusive, but the word “practice” implies habitual or customary performance. The word activity” does not necessarily carry with it that implication. The qualifying words “faith-based”, and what is meant by the word “faith”, are amplified and explained in the Schedule. See N4 and N9.N3 A religion requires that there be “doctrine, dogma, teachings or principles”. Not all religions have “doctrine” and “dogma”, as such, but all appear to have “teachings” or “principles” of some kind. One would need to have regard to the degree of “comprehensiveness” of the doctrine, dogma, teachings or principles (cf Judge Adams’ second indicia in Malnak).N4 All religions appear to contain some sort of theogenesis (or nontheistic equivalent formulation) as well as offer some sort of world view or general picture of the world. As regards the latter, so do many philosophies and other belief systems. The definition goes on to exclude philosophies as well as those other types of belief systems.N5 The ideas, beliefs, practices and activities, and the doctrine, dogma, teachings or principles pertaining thereto (see N28), must relate to that which is perceived to be of ultimate value or importance (cf Paul Tillich) and worthy of reverence, worship and adoration: see also N24.N6 The words have been carefully chosen to embrace different belief systems, especially those grounded in religious naturalism. The word “worship” on its own is considered to be too limiting.N7 Despite what was said by the High Court of Australia in the Scientology case belief in the supernatural is not essential for there to be a religion. To remove doubt, the definition explains what is meant by the word “supernatural”, viz, a belief that there are higher and lower levels of reality. Such an explanation is very Aristolelian/Andersonian and it avoids the need to refer to miracles or the suspension of natural laws, and so forth. It is submitted that this concept of “higher and lower levels of reality” is more helpful than what was offered by the High Court of Australia
  6. 6. in the Scientology case (viz a belief that reality extends beyond that which is capable of perception by the senses). The latter is a definition of parapsychology.N8 A religion is more than a belief system and an organization. There must also be a code of conduct, express or implied, as to how persons are to live their lives, for their own sake and for the betterment of others. See also N38.N9 A religion is more than a belief system. It requires some sort of “body of persons” consisting of one or more “faith-based communities”. The group need not be highly organized structurally in the sense of a body corporate or some other similar body. However, without some sort of body of persons, there is only subjective or individualistic spirituality (or, in William James’ words, “personal religion”), which, on public policy grounds, ought not to be seen to be a religion for legal purposes. The expression “faith-based community” is increasingly being used to refer to religious denominations and groups of all kinds.N10 The words “practical expression” are intended to catch not just communal services but also other activities as well. Even religions in which public worship places a very major part also ordinarily engage in other types of activities (eg religious instruction, social activities, and so forth).N11 Members and adherents of the group give practical expression to their belief system sometimes communally and sometimes in, for example, the privacy of their homes. It would be misleading to ignore the latter.N12 Members and adherents of the group may differ among themselves as to the meaning of the various ideas, beliefs, practices and activities that go to make up their religion.N13-21 This formulation is intended to refer to a religion’s “theogenesis” (whether expressed in theistic terms or otherwise).N13 The various ideas, beliefs, practices and activities that go to make up their religion must have a focus. They must be centrally based on faith in something perceived as “ultimate”. Most importantly, they must be “manifestly” based upon faith. (“Manifest” means discernible to the eye, or objectively evident and obvious: cf Yadle 1 Investments Pty Ltd v Roads & Traffic Authority (NSW). )N14 Religion involves faith (defined to mean “belief and trust”). Faith involves notions of belief (intellectual acceptance of certain ideas) and trust (referring to the level of trust one has in one’s beliefs), with attendant notions of surrender, letting go, self-abandonment, acceptance, non-resistance, standing firm and holding fast.N15 The faith required must be placed in a “Power, Presence, Being or Principle”: cf “supernatural Being, Thing or Principle” in the Scientology case. I have substituted the words “Power” and “Presence” for the word “Thing”, as I think1 (1989) 72 LGRA 409 at 413 per Stein J.
  7. 7. they are more helpful. These words are intended to ensure that nontheistic faiths are included as well as metaphysical religions (eg Christian Science and New Thought) and naturalistic religions where, if the notion of God is present at all, it is conceived in non-anthropomorphic and impersonal terms.N16 This is to make it perfectly clear that religion may be nontheistic.N17 The emphasis here is on perception, not objective reality. It is not necessary that the “thing” believed in actually exist.N18 The use of the word “adherents” throughout the formulation recognizes that not all “followers” of a particular religion are actual members of the particular religious body.N19 The words “permanent, non-temporal, everlasting, self-existent or all-pervasive” are intended to be wide so as to embrace different thoughtforms and descriptions as to what is perceived to be “ultimate”. Together with the words that follow (from Seeger, see N20), there are the notions of uniqueness, primacy, pervasiveness referred to by Crosby (2002), although described slightly differently.N20 This formulation is imported from Seeger. It is considered helpful because it makes it clear that everything in the belief system is subordinate to or otherwise ultimately dependent upon the power, presence, being or principle believed in and considered to be of central relevance and overriding importance.N21 It is considered irrelevant to the issue of whether a particular belief system is a religion whether or not the ideas and beliefs are rational or capable of proof or disproof. As Douglas J pointed out in Ballard religious doctrines and beliefs are not to be put to the proof. See also N56.N22-27 This formulation makes it clear that religion has to do with, among other things, things that are perceived to be divine, holy or sacred.N22 The ideas, beliefs, practices and activities need to be directed towards a celebration - my interpolation - of that which is perceived to be “ultimate”. Everything is secondary to that. The notion of celebration - my interpolation - which involves such things as praise, extolling the virtues, solemnity, commemoration by means of rites, ceremonies and observances, is crucial and its absence will ordinarily be determinative of the issue of whether or not a particular belief-system is a religion.N23 The words “divine”, “holy” and “sacred” are used so as to embrace not only different language and thoughtforms but also different belief systems, both theistic and nontheistic. As Huxley (1964:222) has pointed out the word “divine” did not originally imply the existence of gods. Whatever words are used, the “element of the sacred” (Eliade) is crucial to the concept of religion and religious experience.N24 See N6.N25 As Rudolf Otto has pointed out, a “sense of the numinous” seems to be at the heart of religion and spirituality. Whilst the concept of the “numinous” is somewhat
  8. 8. nebulous and esoteric, and is expressed in many different ways in different belief systems, it still seems to have strong indicative value.N26 Notions or ideals of transcendence or immanence (or both) also seem to be at the heart of all religion, even though they may take various forms as commentators such as religious naturalist Crosby (2003:Online) have pointed out.N27 As Crosby has pointed out, even notions of transcendence are capable of being nontheistic in nature.N28-37 This formulation is intended to refer to a religion’s “theogenesis” as well as “cosmogenesis” (irrespective of whether the religion is theological or cosmological in nature).N29 The words “to be accepted on faith and on authority …” are considered crucial to the definition. There are many systems of belief, and even systems of knowledge (eg the natural sciences), in which faith plays a role. The addition of the words “on authority” are considered especially important and ordinarily determinative of the matter in question. The word “authority” ought not to be narrowly construed and confined to, say, the authority of the Pope, the Bible, and so forth. For example, Unitarian Universalists accept and ordinarily rely upon the authority of reason, conscience and experience. The words “whether or not … binding on members or adherents of the body who may or may not be allowed freedom of interpretation and expression” are intended to embrace religions which allow their members or adherents freedom of interpretation and expression (eg Unitarianism and Liberal Catholicism).N30 See N4.N31 The use of the words “theological” and “cosmological” are intended to cover theological religions (eg Judaism, Christianity and Islam) as well as cosmological religions (eg Buddhism and Taoism).N32 The words “whether or not expressed in the form of a creed, an affirmation or a statement of principles” are intended to embrace creedal and non-creedal religions.N33 Once again, it is not necessary for the world view or general picture of the world to be a true description of reality.N34-37 This formulation is intended to refer to a religion’s “anthropogenesis” and “psychogenesis”.N34 As commentators such as Ninian Smart and Joseph Campbell have pointed out, all religions appear to contain myth, legend, fable, allegory, symbol, image, narrative and stories of various kinds that are ordinarily considered to be of central importance.N35 The words “whether or not so perceived by members or adherents of the body” have been inserted because it is immaterial (for the purposes of the definition) whether, for example, members or adherents of the group regard the stories as true or mythological in nature.
  9. 9. N36 The writings may or may not be considered to be “divinely inspired” or “sacred”, but they still need to be of “considerable importance”.N37 The writings must deal with “the origin, place and development of the individual, the powers resident in the human soul, psyche or person, and the destiny of the individual, the latter often being expressed in salvific terms”. Most, if not all, religions contain notions of salvation, atonement, redemption, surrender, letting go, spiritual evolution, or the like.N38 See N8.N39-45 This formulation, in conjunction with that referred to in N34-37, is intended to refer to a religion’s “psychogenesis”.N39 This is intended to be fairly wide. For example, not all religions are sacramental.N40 The forms, ceremonies, customs, usages and practices may or may not be structured. In some religions (eg Roman Catholicism, Orthodox Judaism) a highly structured and liturgical form of worship and religious observance is ordinarily the norm as opposed to other religions (eg the Baptists).N41 Religion is all about change and transformation, personal and otherwise. I have used the words “spiritual or transformative power” in order to embrace the non-physical and the physical, as well as a combination of the two. (NOTE. As explained elsewhere in this thesis, the word “spiritual” is not synonymous with the word “supernatural”.) In some religions the activities are considered to have enormous inherent transformative power (eg the Roman Catholic Mass, with its doctrine of transubstantiation). Other religions (eg the Baptists) would see the same ceremony altogether differently, with the bread and wine being symbols or emblems of Christ’s body and blood.N42 In most religions the practices, activities and techniques described or otherwise referred to in the definition taking place on a fairly regular basis in the context of services or meetings conducted in buildings or places (ordinarily “places of public worship” such as churches, synagogues and mosques). However, this is not always the case, hence the formulation does not actually require it.N43 Public worship is expressly referred to, but its presence is not made an essential part of the definition (see N44).N44 The words “or otherwise giving practical expression to their faith …” are intended to catch activities that cannot otherwise be seen to be “public worship”. Even religions in which public worship plays a very major part also ordinarily engage in other types of activities (eg religious instruction, social activities, and so forth).N45 For fairly obvious reasons, the list is expressed to be inclusive only.N46 For every religion there must be a “group” of some kind consisting of persons who are bound spiritually, socially, culturally or otherwise (ordinarily within the framework
  10. 10. of an overall organizational structure. The ideas, beliefs, practices and activities must be “manifest” (ie objectively evident) in the group.N47 Religion ordinarily provides a sense of belonging, not only to a group, but to something more intangible, as William James pointed out in his Varieties.N48 Religious organizations are ordinarily recognizable to persons outside them by reason of the presence of certain external indicia (cf Judge Adams’ third indicia in Malnak).N49 See N55.N50 This formulation comes from Seeger. However, the words “in no way related to or otherwise based upon faith in a power, presence, being or principle” have been substituted for the words “in no way related to a Supreme Being” so as to embrace belief systems which do not involve notions of a Supreme Being.N51 This is consistent with the overall methodology of this thesis, in that whilst an objectivist approach ordinarily is to be taken the subjective factor in religion is not altogether irrelevant bearing in mind its highly personal and even idiosyncratic subject-matter.N52 Subjectivism is used in certain parts of the definition where the perception of some matter by members or adherents of a group is more important than objective reality in terms of its ability to assist in the appreciation or recognition of the particular system of ideas, beliefs, practices and activities being religious.N53 The absence of any one or more of the matters that are declared by the definition to be often, ordinarily or usually present where there is a religion are to be weighed in the balance along with all other relevant matters for consideration in deciding whether a particular system of ideas, beliefs, practices and activities is a religion, the idea being that the greater the number of matters that are declared by the definition to be often, ordinarily or usually present where there is a religion, the greater the likelihood we do not have a religion. This is similar to the approach taken by Wilson and Deane JJ in the Scientology case.N54 This is consistent with the adoption of what is primarily an objectivist approach. The courts must decide for themselves whether a particular belief system is a religion, taking into account a number of factors, one of which is how the group sees itself.N55 Some of this wording comes from Theriault v Carlson but I have added the words “or to achieve some extraneous purpose not traditionally associated with religion” (eg to secure a rating or tax exemption) even though that tends to smack of a functionalist approach which, for the most part, I have tried to avoid.N56 Once again, it is considered irrelevant to the issue of whether a particular belief system is a religion whether or not the ideas and beliefs are true and correct. See N21.
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