International Trade and Business Law Review

Volume X

Gabriel Moens, Roger Jones

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781136019906
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Compiled by leading international trade law practitioners and academics from across the globe, this volume provides legal and business communities with information, knowledge and an understanding of recent developments in international trade, business and international commercial arbitration. Scholarly in style, this volume contributes to the discussions surrounding the developments whilst being informative and of practical use to the business community and lawyers.

Covering the areas of international trade and business law, arbitration law, foreign law and comparative law, with one section devoted to the Willem C. Vis International Commercial Arbitration Moot, it contains:

• leading articles
• comments
• case notes
• book reviews.

International Trade and Business Law Review is an invaluable resource for post-graduate students and business and legal professionals, primarily studying and working in the UK, USA and Australia.

RELIGIOUS MONOPOLIES AND THE COMMODIFICATION OF RELIGION

Shima Baradaran-Robison,* Brett G. Scharffs,† and Elizabeth A. Sewell‡

ABSTRACT

In recent years, there has been an increase in the number of countries in which a dominant church receives state aid and other forms of preferential treatment. Dominant religions and their supporters in the former Soviet bloc and elsewhere often argue that special benefits and protection are warranted based upon the unique history and contribution of the dominant church to the identity, history, and culture of the country, and the interests of the state and its citizens. Because of the distinctive status of religion and its importance to national and cultural identity, special protection, especially against foreign and other outside influence, is argued to be necessary. Although the spiritual realm is treated as being a special situation requiring special protection, the arguments in favour of religious protection curiously resemble arguments made by monopolists and on behalf of protected industries in the economic sphere in favour of protection. This paper compares the arguments in favour of protection made by religious monopolies with arguments in favour of protection by monopolists and protected industries, and concludes that in their pleas for special treatment, dominant religious groups make arguments that closely parallel those made by other types of monopolists and protected industries. Far from resulting in religion being treated as different and special, protectionist arguments result in religion being treated as just another market commodity. We urge that because religious freedom is a fundamental human right, arguments promoting state protection of dominant religions should be viewed with suspicion.

INTRODUCTION

Religious monopolies in various countries have claimed that they should receive state protection,¹ often citing their unique cultural and historical importance. As appealing as these arguments may be, our analysis reveals that the arguments these groups use to secure and support their financial and legal position parallel closely the arguments used by industrial monopolies.

States protect religious monopolies through elevated status in the public realm,² constitutional protection,³ financial assistance⁴ and enacting of unfriendly laws towards minority religions.⁵ One commentator argues that the number of European states providing state aid to religious groups has increased in recent years.⁶ Religious monopolies make several arguments that state protection best serves the interests of three parties: the religion itself, the state and society, and citizens.⁷ The claimed benefits to the state include that the religion is fundamental to state culture, creates social stability, preserves national identity and national security, and prevents domestic dependence on foreign churches. Religious monopolies also argue that protection is necessary to preserve a church because the church is in its infancy or in a stage of recovery and needs financial assistance to maintain its presence and to compete with heavily funded foreign churches. The religious monopoly also argues that state protection benefits the citizens who retain access to their historical church of preference and avoid exploitation by new religions through fraud and manipulation. Religious monopolies in several countries have received state protection including financial aid and protectionist legislation against competing religions by relying on the above rationale.

Dominant churches benefiting from state protection rely on many of the same arguments as industrial monopolies. These industries have also claimed similar benefits to the state, industry, and citizens in order to obtain subsidies and legislation to protect their industries against domestic and foreign competition.

Varying degrees of state protectionism exist, ranging from state-regulated industries to protection of infant and recovering industries.⁸ This paper discusses a variety of protectionist practices (including subsidies, tariffs and legislation limiting foreign and domestic competition). These practices result in various levels of state protectionism (whether consisting of a combination of protectionist practices or an individual protectionist practice in an extreme form) which may be harmful to industry, the state and society, and citizens. As with industrial protection, religious protection is best described as a spectrum with some religious monopolies benefiting from many forms of state protection as a “virtual territorial monopoly”,⁹ while in other states, despite protection, minority religions survive. Recognising that there is a spectrum of protectionism, this paper points out that the same rationale for rejecting protection of industrial monopolies should apply to reject protectionism of religious monopolies.

While several commentators have explored the state of dominant religions in various countries and the challenges facing minority religions, no commentator has documented the remarkable similarity of the rationales for protection of religious and industrial monopolies. A few scholars have applied economic theories to questions of religious belief or government regulation of religion,¹⁰ but none has explored the relationship of religious protectionism and economic protectionism. This paper examines the similarities in protectionist arguments made in the industrial and religious arenas and asserts that when protectionist arguments are made to protect religious monopolies, religion is treated as a market commodity.¹¹

Perhaps the general reticence to apply the seemingly scientific, rationalistic, and utilitarian field of economics to religious belief¹² and the futility of using a utilitarian calculus to assign objective value to various religious traditions would caution against our approach of comparing religious arguments for government protection and industrial protectionism arguments. Modern protectionist arguments in the industrial field often rely solely on economic efficiency arguments, which seem to have no relevance to arguments for religious policy. Indeed, United States industries seeking to defend state protectionism must legally rely on market efficiency arguments, since current antitrust law relies solely on an efficiency-based economic rationale rather than on social and political principles.

Despite these daunting challenges, we argue that there is a significant correlation between economic and religious protectionist arguments. While we do not propose an optimal “efficiency” of religious belief nor an optimally efficient distribution of believers among various religions, we argue that the social and political principles undergirding arguments against state protection are not out of place in the industrial arena. Underlying the efficiency arguments advanced in the industrial sphere are social and political rationales for freedom and individual choice that apply equally in the religious sphere. Early justifications for US antitrust laws relied on such social and political rationales, arguing that monopolies, which benefit from extreme state protection,¹³ permit concentrations of power that decrease democracy and individual liberty. We contend that protectionist arguments in the field of religion conflict with these same principles and ultimately treat religion as no more than an economic commodity.

Since religion is a vital human right, arguments promoting state protection of religion should be viewed with suspicion. This paper asserts that despite arguments by both industries and religions that they benefit from state protection, lessons from industry and religion suggest that protection rarely creates the advantages sought. In fact, the interests of the state, industry, and citizens may actually be harmed, rather than served by protection. In examining the similarities between industrial and religious arguments in favour of protection, we are not concerned with economic efficiency arguments, but point out that the social and political motivations to oppose state protection also apply to religion.

This paper summarizes the asserted benefits to an industry of state protection. It also notes the remarkable resemblance of arguments in favor of protection of religion with arguments to protect industry. It goes on to explore the claimed benefits to the state and society of protecting industry, and the similarities between the asserted benefits to the state and society of pro...

Table of contents

• Cover
• Half Title
• Editors
• Full Title
• Copyright
• Contents
• Articles
• International Arbitration Moot
• Book Reviews