Charity and Religion
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KeywordsCharity Philanthropy Civil society Religion Christianity Faith Law Reform
“Charity,” as a legal concept, is confined to and defined by the common law. It is usually considered to date from the Statute of Charitable Uses 1601 in England and Wales, which laid the legislative foundations for the development of modern charity law. The preamble to that statute defined charity in terms of selected charitable purposes,
Religion was defined in Keren Kayemeth Le Jisroel v. Inland Revenue Commissioners (1931) 48 TLR 459 as “the promotion of spiritual teaching in a wide sense, and the maintenance of the doctrines on which it rests, and the observances that serve to promote and manifest it.” Although not mentioned as a charitable purpose in the 1601 Act since the 1879 ruling by Macnaghten LJ in Pemsel, there was never any doubt as to the legal inseparableness of charity and religion.
A body of case law precedents and related principles largely shared among the 60 or so nations that subscribe to the common-law tradition now determines when religion, religious organizations, and their activities meet the legal definition of “charity.”
For the purposes of charity law in all the common-law nations, “religion” has for the most part been tied to a belief in God which, until relatively recently, was most usually interpreted to mean a Christian deity.
Although until recently judicial interpretation of “religion” has not differed greatly, there has been considerable jurisdictional variation in relation to the range of activities held to merit charitable status.
Religion and charity have been inextricably entangled throughout their long history. The foundations of the three main religions – Christianity, Islam, and Judaism – are each bedded down on doctrines that require their members to do good for others mainly by caring for the ill or destitute and giving to those otherwise in need. The earliest manifestations of civil society grew from that context in the form of associations or guilds (confraternities in the Catholic Church) dedicated to the pursuit of religious aims through various forms of community activity. Perhaps the earliest threats to civil society, as manifested in the Crusades, were similarly generated. Arguably, religion and charity continue to simultaneously sustain and erode the basis for civil society.
“Charity,” as it is known to those nations belonging to the common-law tradition, is defined by law rather than religion. In that respect, it is quite different from its counterpart zakat and sadaqa in Islamic culture and from tzedakah in Judaism. It differs also from its equivalent in other Christian but civil law jurisdictions, where the law has accreted in codified form rather than been shaped by principles formulated in the court of equity as has occurred in the common-law nations. Charity, in a common-law context, has its origin in the “pious use” employed to facilitate gifts made by landowners to religious bodies in return for masses being said for the salvation of their souls. In the developing nations, charity and religion, particularly in an Islamic context, continue to be very much bound together and in theocratic Muslim states that symbiotic relationship has a prominent political salience. Indeed, the growing difference in perception between Islam and Christianity, regarding the role to be played by religion/charity on a domestic and international basis, is not without global political implications. Consideration of such matters, however, lies outside the scope of this entry.
“Charity,” as a social construct, predates its legal definition and has its origins in the doctrine common to all religions that only by doing good works in this life can eternal salvation be assured in the next. Indeed, to subscribe to the Christian faith entails obeying the duty to love one’s neighbor, an inescapable requirement for salvation of the soul. Christianity is not, of course, unique in this respect: Buddhism teaches the love of mankind as the highest form of righteousness; Islam requires a tithe of one-tenth of income to be given to those in need; and the Jewish religion urges its followers to assist the poor and practice charity. In its initial religious context, charity was thus “more a means to the salvation of the soul of the benefactor than an endeavor to diagnose and alleviate the needs of the beneficiary” as succinctly explained in the Report of the Committee on the Law and Practice Relating to Charitable Trusts (HMSO 1952, at para 36).
Collective organizations, in the form of guilds or confraternities dedicated to such purposes, were in existence centuries before the 1601 statute. In The Parish Gilds of Mediaeval England (Westlake 1919), for example, mention is made of “the gild of the Blessed Virgin Mary in the parish church of St. Botolph at Boston, founded in 1260, which gave a yearly distribution of bread and herrings to the poor in alms for the souls of its benefactors.” Confraternities, as Flack explains, “were established for a variety of purposes but fundamentally they were about laymen and women joining a voluntary association to receive mutual encouragement to live pious lives” (Flack 2008). He adds that they may have existed in both the Eastern and Holy Roman Empires even before the sack of Rome in AD 410. Some had charitable purposes such as one with a special devotion to the sick and deceased, which flourished in Constantinople in 336, and others in the West that looked after abandoned children as early as AD 400. The earliest Catholic lay confraternities were probably formed in Italy as early as the third century, but were certainly well established by the mid-twentieth century. In medieval England, many schools and hospitals were founded by religious organizations, and they in turn received powerful support from the State. King Edward’s code promulgated at Andover in 963, for example, proclaimed that “God’s churches are entitled to their rights,” required taxes to be paid to the Church, and imposed severe penalties for nonpayment. The instilling of Christian beliefs, accompanied by charitable provision for the disadvantaged, was of common interest to Church and State and provided an early conceptual test bed for establishing civil society.
Historically and currently, the contribution of religious organizations to total charitable activity, to the work of the wider voluntary sector, and to statutory services provision in all common-law jurisdictions is inestimable. They have been most obviously prominent in activities that served to advance religion, sometimes with contentious outcomes, but have also often been engaged in putting in place social infrastructure both in common-law countries and in developing nations. Ireland, Australia, New Zealand, and Canada are much indebted to the religious organizations that laid the foundations for their present health and education systems and often provided the staff and resources for their functioning and maintenance. Faith-based educational facilities and hospitals continue to play a role in these countries, though are now largely redirected toward developmental projects in Africa, Asia, and the Pacific region. However, the contribution of religious organizations has been at a price. In the developed nations at the dawn of the twenty-first century, resonances of social upheaval, generated by earlier failings of religion and charity, are now triggering an acute political awareness of their strategic role in civil society.
The post-9/11 era and the ongoing turmoil in Iraq and the Middle East bring a salutary reminder of the dangers of cultural polarization and of religion’s capacity for accentuating divisiveness. In societies characterized by religious division, as in the Indian subcontinent, the tendency for religious charities to be both very active and very partisan has served to emphasize differences, increase social polarization, and raise tensions. In such societies, it is seldom acceptable for a charity of one religious denomination to use its resources for the benefit of members of another, or to do so for the purpose of building conciliatory bridges of communication between rival religious groups. From the Crusades in the twelfth century to the twenty-first-century treatment of the Uighurs in China, religion has demonstrated its latent capacity to cause social divisions and provoke violent confrontations; as in Northern Ireland where it resulted in several thousand deaths from clashes between Protestant and Catholic communities and damage to civil society that may take generations to repair. Most recently, the ISIS insurgency in the Middle East threatens to trigger a Sunni/Shia confrontation which may have far-reaching destabilizing consequences for that region and further afield.
Poverty and the latest mass migration of refugees into the northern hemisphere, which began in 2015, have awakened folk memories of the social dislocation that followed industrialization within the nations of that hemisphere. The impact of so many disparate ethnic groups, mainly Muslims, on the social infrastructure and cultural cohesion of the receiving nations is considerable. The challenge of accommodating their needs and responding sensitively to their religious and cultural affiliations is depleting resources and imposing real social and political pressures on the multicultural policies of those nations. The root causes of poverty, disease, and climate change currently affecting countries in Africa and parts of Asia are connected to the inequitable aid and trade policies pursued by the developed nations and are reminiscent of domestic exploitive practices during the industrialization era. Compounded by the prolonged US-led war against terror in the greater Middle East, causing socioeconomic devastation and massive population displacement, the consequences can now be seen in what is currently estimated to be the greatest number of refugees ever recorded.
Again, in the recent spread of faith-based schools in the United States and the United Kingdom, there are uncomfortable echoes of an earlier role of Church-controlled residential educational facilities in Canada, Australia, and Ireland. Religious organizations were then guilty of colonizing the educational system for purposes of proselytism, being used as agents of the State to advance policies that separated out and accentuated the marginalization of minority groups and of setting standards of care that allowed the victimization of some children. Now, governments are again facilitating the rise of faith-based organizations as providers of publicly funded services. In the United States, for example, through the Charitable Choice clause in the Welfare Reform Act 1996 (known as the PRWORA) and through Trump administration initiatives including establishing the Division of Conscience and Religious Freedom under the auspices of the Office for Civil Rights, and by executive orders such as ‘Promoting Free Speech and Religious Liberty’, the federal government has reached out to form partnerships with such organizations despite the US Constitution’s First Amendment’s Establishment Clause constraints. If these bodies are to avoid similar charges in the future, then an appropriate regulatory system will need to be put in place.
Throughout history charity has been confined to alleviating some of the effects of poverty and has proven ineffectual in addressing its causes. The threat of a more general social destabilization, as a consequence of failure to adequately meet this particular challenge, is a pressing cause for concern.
The role of religion and charity in modern society has given rise to considerable controversy, usually centered on their capacity, separately and jointly, to promote pluralism rather than simply defend sectional interests.
Religious or faith-based organizations tend to be politically conservative. On the one hand, because of their institutional nature and longevity, such charitable entities can reinforce and sustain established social norms and may exercise a restraining influence when faced with the prospect of political change, as occurred in some South American countries in the last half of the twentieth century. On the other hand, their pastoral concerns, established over generations of close engagement with vulnerable communities can, as in Poland in the late 1980s, prompt them to be at the forefront of such change when religion itself is being politically suppressed. Religion, charity, and charitable religious organizations share an approach of acceptance toward the challenge of circumstances which can be problematic in some social contexts: the use of contraceptives to combat the spread of AIDS in Africa and to lift communities out of poverty by controlling population growth; accepting changes in social mores as in relation to matters such as gay marriage, gender transition, and medically assisted death; and endorsing medical innovation such as IVF, the use of embryos for research and gene editing.
The political value of religion and the charitable activities of religious organizations lie in their undoubted capacity to generate social capital (Putnam 2000). However, there are those who take the view that this is essentially of a member-benefit nature which, while cementing relationships between those of the same religion, preferences and sharply differentiates that religion from all others: the “bonding” form of social capital provided by religion is at the price of the “bridging” form, as illustrated by experiences in Northern Ireland, Kosovo, and Myanmar. The former, with its population divided on religious grounds, is a society where most charitable activity has always been associated with religious bodies but where the net charitable impact has arguably been divisive: polarizing communities and hindering the consolidation of a pluralist civil society. More recently, and most viscerally, the rise of ISIS has clearly demonstrated the destructiveness of religion when deployed as “a badge of difference.”
The “gift relationship” (Titmus 1970) held to underpin charity is for some a questionable means of addressing social need. It is suggested that charity’s contribution to the alleviation of the effects of poverty is achieved at the cost of ignoring its causes, conceding compliant deference to the benefactor and instilling in individuals, institutions, and society an acceptance of things as they are. Instead, it is argued, a more effective strategy would be to equip the individual, community, or nation with the means to achieve self-sufficiency by investing in the aid/trade/skill development programs necessary to ensure their independence and ability to compete in the “open market.” As the reality and effects of climate change, exacerbated by war and socioeconomic collapse, drive more Muslim migrants into the northern and still largely Christian hemisphere, it is likely that the political framework for civil society in the developed West and for the joint functioning of charity and religion will undergo severe stress tests.
There is also the fact that increased secularization of the social infrastructure in contemporary developed nations has allowed, if not stimulated, mounting skepticism as to the benefits inherent in the role of religion, while an ever-expanding raft of national and international legislation underpinning entitlements to human rights, equity, equality, and nondiscrimination has cast doubt on the relative usefulness of charity. The belief or acceptance that religion and charity were destined to complement each other in perpetuity, saving lives in this world in order to save souls in the next, is for most, in the more developed nations, succumbing to a contemporary attitude of quiet disinterest in both.
The common-law jurisdictions largely share the same pool of judicial precedents; adhere to much the same body of domestic legislation dealing with equity, equality, and nondiscriminatory practice; and subscribe to the same international Conventions, treaties, and instruments (or their domestic equivalents) governing matters such as human rights. Most have now also completed charity law reform processes. While this facilitates a congruity of approach toward charity and religion, it also permits identification of some areas of jurisdictional difference.
The right of an individual to choose and practice a religion is firmly established by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and has been endorsed in the domestic legislation of common-law countries. The Convention requires that any interpretation of “religion” be applied objectively, have reasonable justification, and be nondiscriminatory; any differential treatment must comply with strict standards. This legal benchmark for nondiscrimination in matters of religion is underpinned by Article 14 and supported by Article 9 (the right to freedom of thought, conscience, and religion). It has the effect of requiring governments and other public bodies to give parity of recognition to Christian and non-Christian religions, such as Buddhism and Hinduism, and to belief systems more broadly such as Scientology. Two important decisions of the European Court of Human Rights have raised the profile of Article 9: Kokkinakis v. Greece (A/260-A) (1994) 17 EHRR 397 and Manoussakis v. Greece (18748/91) (1996) 21 EHRR CD3. In the Kokkinakis case, the court recognized the right to proselytize when it is exercised with respect for freedom of the religion of others and held the right to be protected by Article 9. Moreover, as Justice Pettiti then stated: “[R]eligion is one of the foundations of a democratic society within the meaning of the Convention and the pluralism that cannot be disassociated from a democratic society depends on religious freedom.” In the Manoussakis case, the court found that “the right to freedom of religion … excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.” These cases affirm the significance of freedom of religion for modern democratic States.
In the United States, the Constitution, its Bill of Rights, together with the 13th, 14th, and 15th Amendments, may be considered to provide a body of provisions equivalent to the European Convention on Human Rights with nationwide application. The First Amendment’s Establishment Clause draws a line between Church and State by prohibiting undue government involvement with religion, reflecting, perhaps, the deep distrust of the “founding fathers” with the collusive nature of that relationship and its propensity in “old” Europe to trigger social disruption. Case law in that jurisdiction (e.g., Walz v. Tax Commission of the City of New York, 397 US 664 ) illustrates the vigilance with which the IRS and the courts have carefully policed any possible entanglement of Church and State interests, though this been considerably relaxed in recent years.
In Canada, where federal charity law reform initiatives have repeatedly failed to make any progress, judicial and regulatory bodies continue to apply established common-law precedents. Most recently, in Church of Atheism of Central Canada v. Canada (National Revenue), 2019 FCA 296 (CanLII), the Court of Appeal ruled that a body set up “to preach Atheism through charitable activities” could not be registered as a charity because it lacked a charitable purpose as defined by the common law.
In Australia, the decision in Commissioner of Taxation v. Word Investments Limited  FCAFC 171 had implications for religious organizations elsewhere in the common-law world. The charitable status of Word Investments Ltd. was challenged because it raised its funds through various activities such as investing money borrowed at noncommercial rates from supporters, offering financial planning for a fee, and a funeral business. The court noted that with the decline of the welfare state, charitable organizations are expected to do more with the same resources and reliance on donations in many cases will be insufficient. They further noted that many charitable organizations have established business ventures to generate the income necessary to support their activities. The purpose of the organization was deemed to be charitable.
The charity law reviews in England and Wales, Scotland, Northern Ireland, and Ireland concluded with – and in New Zealand, Australia, and Singapore concluded without – a change to the legal definition of “charity.” In the UK jurisdictions, this included the removal of the traditional legal presumption that charities are for the public benefit and every charity is now required to explicitly demonstrate that their purposes do so; the implications for traditional religious organizations and their many emanations – schools, hospitals, etc. – have yet to be tested in the courts. In Ireland, the legal presumption is also now removed, but, significantly, it specifically excludes religious organizations which continue to be presumed to be for the public benefit. The definitional changes expand the meaning of “charity” into the areas of health and social care service provision, civil society consolidation, and the promotion of human rights, which will undoubtedly generate case law with international implications. This is being accompanied by definitional changes to the meaning of “religion” driven by the impact of equality and nondiscrimination law. The definition of what may constitute a “belief,” warranting a status equivalent to “religion” in law, now falls to be determined in accordance with the subjective understanding of the individual concerned – cogency, substantiveness, and personal commitment permitting – rather than as prescribed in tenets or doctrines. Consequently, the legal meaning of “religion” is becoming increasingly attenuated as it accommodates a multiplicity of beliefs – from veganism to paganism – that threaten to more broadly unravel its relationship with charity.
For the common-law nations, the future role of charitable religious organizations is likely to be shaped by domestic opportunities resulting from the contraction of government services and, on an international basis, by the growth in entrepreneurial philanthropy and the constraints imposed by the continued war against terrorism. In both domestic and international contexts, the essentially Christian ethos of religion and charity in those nations will have to adjust to meet the challenges presented by a sustained influx of migrants, the necessity to engage with and accommodate the needs of those from other cultures, and the mounting pressure to address the grievances of a resurgent Islam.
The contraction of government service provision, resulting from inexorable demographic trends that include falling fertility rates and an age imbalance, is now well advanced in all modern, developed nations and is likely to gather momentum in future decades. As government retreats, it is negotiating the terms on which charities will assume increased responsibility for service provision and is choosing to contract with religious organizations as they have the community networks and established goodwill, together with exemptions from tax and equality law constraints, that make them cost-effective public service providers. It is significant that the charity law reform processes generally concluded by incorporating new statutory provisions that specifically broadened the definition of charitable purpose to facilitate this policy. This has opened up a new era for future and more extensive government/charity partnership arrangements.
The growth prospects for charity have to be set against the constraints emanating from the new international security imperative. The current “global war against terrorism” and the accompanying raft of antiterrorism laws, in conjunction with the minefield of international trade, will undoubtedly combine to restrict the overseas activity of many charities. Government pursuit of terrorists, and maintenance of subsidies for domestic produce, can result in charities being regarded with some suspicion. This is particularly the case in relation to those charities associated with countries and religions that fall within the scrutiny of government foreign policy. As governments increase their regulatory powers of surveillance, and improve the capacity to track international flows of finance, charities now run the risk of being viewed as the weak link in the war against terrorism.
Philanthropy, anchored to a decidedly more secular entrepreneurial spirit – dedicated to vanquishing AIDS and malaria and to “making poverty history” – is, arguably, gradually moving into the space traditionally occupied by religion and charity to address issues of poverty, disease, and social inclusion. New and independent hybrid legal structures, combined with the financial resources and business expertise of entities such as the Bill & Melinda Gates Foundation, are positioning themselves to make a greater impact upon these perennial problems than ever before achieved by government, charity, or religion.
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