It is not new, that (some) religious communities are regulated internally through a governance system described as law. Canon Law of the Catholic Church or of the Orthodox Churches is the main and well-known example of such a transnational regulatory system.
In the Nordic context, however, the states have (more or less since the Reformation) had monopoly on regulating law, including law on ecclesiastical matters. The extent to which there is a link to the Nordic secularity of law is researched in the HERA-funded research project Protestant Legacies in Nordic Law: Uses of the Past in the Construction of Secularity of Law (www.teol.ku.dk/pronola).
Increasingly, however, religious law is now, both in legal theory and in court practice accepted as transnational legal orders that can claim exemptions from and probably even solutions in conflict with the (secular) legislation of the land. The claims are based on international law, but the consequence is the re-appearance of transnational legal orders in these countries.
New is also disputes on whether or not participants in legal disputes concerning religious matters have access to (secular) court, or whether they, as has been the case in several American cases, are denied this access and referred to internal dispute resolution mechanisms, based on an argument on transnational religious law as a legal system of its own (see e.g. the papers in Slotte & Aarsheim (eds) 2015. See also Juss 2017).
New is finally, that claims of independent religious orders based on transnational legal arguments are now also raised by religious communities, representing the majority of the populations in the Nordic countries (such as the Church of Norway). This tendency could be identified as a re-sacralisation of (parts of) Nordic law (Christoffersen 2017, forthcoming).
There is thus an open and relevant case of horizontal regualatory interaction between state law and transnational legal orders/legal arguments regarding religion law in the Nordic countries, changing traditional legal approaches to the field. This makes the field of religion-law a relevant case, through which it becomes possible to analyze tendencies and challenges of transnationalisation of Nordic law.
This paper firstly makes a descriptive account of the field of religion law through the lenses of one transnational religious legal order. The description accounts for the questions regarding actors, what defines them as legal actors, their role in the transnational regulatory and judiciary system and relations between the transnational religious legal system and national law.
This descriptive account is made through analysis of a hitherto under-analyzed example: the internal legal system of the Methodist Church. The argument for taking this approach is that, apart from being under-analyzed, the Methodist Church worldwide is understood as quite liberal. The Nordic selv-understanding of the church is that it functions without tensions to the state law (Alsted, 2014). However, the international Methodist Church is also currently struggling with how to deal equal treatment questions concerning sexuality, gender etc. It is therefor not a given case, that even this liberal, protestant church would be able to escape a legal conflict with new regulatory tendencies in the Nordic countries concerning requirements to religious communities, offered acknowledgement from the state (see e.g. the Danish betænkning 1564/2017, the Norwegian NOU 2013:1 and an upcoming parallel Swedish analysis).
The description will thus clarify transnational legislative and judiciary competences and possible conflicts with the competences of the nation states.
Following this descriptive approach, the paper analytically will also in the first part make the above-mentioned argument concerning the new and/or challenging dimension of religion-law in the Nordic countries.
Secondly, the paper discusses the question of legitimacy behind the internal transnational legal system of the United Methodist Church. There is no doubt that internal actors of the Methodist Church “rightly” can both create and apply law – but the extent to which this legitimacy can be challenged by national governments and courts is to be discussed.
Also, members of the Methodist Church are in the same time citizens of national legal orders - question is, how these two systems of legitimacy interact and to which extent the traditional legitimacy behind Nordic legal systems is challenged by (current?) tendencies in the International Methodist Church.
Finally, the paper discusses to which extent a re-sacralisation of law is at all challenging. One set of arguments is that religion-law is no more challenging than sports-law. What matters is to (try to) ensure that transnational religious legal systems account for access to conflict resolution systems equal to those of state law, no more, no less. – The opposite set of notions is that religion-law has proved to underestimate equality norms, acquired through state-law and that no citizen, even though said to do so by individual choice, should be required to give up on such basic norms.
Hitherto, the international law has based its arguments on the individual right to leave a religious community, thus making the free choice the basic legitimacy behind these legal systems. In a European context, the ECtHR has supplemented this with a ‘balancing of human rights’-approach.
This paper argues, that it must take more to give up on basic rights for citizens in countries that have traditionally (at least through the last 500 years) been equal for the law.
The paper also argues that the basic hindrance for an equality approach seems to be a developing understanding that religion-law is untouchable for legislative and judiciary institutions of the land.
The article challenges this approach by arguing that on the contrary, the national institutions must have an obligation to ensure legal rights for citizens also in closed communities, such as religious communities, at least parallel with the obligations to ensure other private law relations. How far that argument will reach, depends on the analysis, previously in the article.