This brief article argues that interaction between law and history, each with its own distinctive dynamics, is inevitable, and that this interaction has particular, important characteristics in the context of law and religion. Lawyers, both academic and practising, are sometimes keen to avoid engaging in historical debate. In the Indian litigation concerning the Ayodhya dispute, discussed below, Justice Khan noted that, ‘having no pretence of knowledge of history, I did not want to be caught in the cross-fire of historians’.Footnote 1 Such a separation between law and history is not possible, and indeed Justice Khan himself, as I show below, made a number of findings of historical fact which then shaped his legal reasoning.
Legal actors will face competing, often incompatible, arguments as to historical facts as parties in a dispute seek to advance their present interests. This will require legal actors to engage with historical materials in a way which may be uncomfortable and, in the case of sacred histories, may involve some particularly difficult decisions around what type of historical evidence should be translated into legal evidence. The dynamics of the legal process can mean that determining these historical facts cannot simply be avoided by a state actor, particularly the judiciary. The complexity of historical processes may tempt a legal actor who cannot avoid this to seek to defer it, so that the dispute is resolved by an extra-legal process such as the political process, negotiation between the parties or direct action. Such deferral may itself create significant difficulties.
In exploring these ideas, we draw upon three case studies. All are based in the common-law family of legal systems, which share a common emphasis on particular sources and modes of legal reasoning, and an emphasis on the court as adjudicator between competing arguments put by the different parties. These case studies involve a change to consumer protection in England; the demolition of an ancient sacred site in India leading to national communal violence and at least 1,200 deaths; and an Australian bridge-building project that not only bankrupted the developers but led to a national debate over the rights of indigenous communities.
Problems in Lawyerly Uses of History
The interaction between law and history is inevitable, at least from a legal perspective. As Cahillane puts it, ‘lawyers sometimes feel that history comes naturally to them … [but] it only comes naturally in a certain way’.Footnote 2 While laws are occasionally presented as if their value depends upon their age, or rather lack of age, much of the corpus of materials that lawyers in the United Kingdom work with every day can equally be read as historical documents. A number of technical doctrines actively require lawyers to engage with the historical context of legal materials in order to state accurately their contemporary meaning. For instance, when interpreting an act of parliament, one of the common tools used by lawyers is the purposive approach, sometimes more narrowly stated as the ‘mischief rule’. With this tool, in order to understand the meaning of a piece of legislation, the lawyer is required to determine what mischief it was intended to address, something hardly possible without some grasp of the context around its passage.Footnote 3 As another example, since the landmark decision in Pepper v. Hart the courts have recognized that the parliamentary debates during the passage of legislation can help to determine the meaning the legislation should be held to bear.Footnote 4
Law, and legal materials, may also be seen as inevitable to the study of history. Legal documents can be mined by historians for many more uses than simply the study of the history of ideas in law.Footnote 5 Sugarman, for instance, has recently called for increasing dialogue between those working in history, legal history and socio-legal studies.Footnote 6 The legal process may also be consciously intended to create a historical record. A recent example of this can be found in work of various bodies set up in response to the civil war in Sierra Leone (1991–2002), which, in the words of the Sierra Leone Truth and Reconciliation Commission Act 2000, included the goal of creating ‘an impartial historical record of violations and abuses of human rights and international humanitarian law’,Footnote 7 as well as that of resolving individual cases.Footnote 8 I will leave for elsewhere the extent to which legal processes are particularly suited for determining historical facts. That trials, especially criminal trials, carry some sort of cultural marker of authoritativeness can perhaps be illustrated by the recurrent use of mock trials to ‘resolve’ historical controversies, for instance the theatrical trial of Richard III in 2018 for multiple murders, presided over by Lady Justice Hallett, who adjudicated in the real dispute over that king's remains,Footnote 9 or the various trials of Socrates, Henry VIII and George III.Footnote 10
The interaction between these two disciplines is increasingly subject to critical consideration.Footnote 11 Perhaps the highest-profile area of controversy is in relation to Holocaust denial and, to bring in a less commonly discussed example, genocide assertion. The majority of European states now criminalize Holocaust denial, in some instances as part of a broader category of denial of particular historical facts which are treated as criminal.Footnote 12 In one case before the European Court of Human Rights, Holocaust denial was distinguished from the assessment of Pétain's role in Vichy France on the basis that it belonged to ‘the category of clearly established historical facts … whose negation or revision would be removed from the protection of’ the freedom of expression guaranteed under the European Convention on Human Rights.Footnote 13 Complex although the legal, historical and human rights issues are around Holocaust denial, these are exacerbated in relation to the mass killings of Armenians in 1915.Footnote 14 In 2005, Dogu Perincek was convicted in Switzerland of denying a genocide because of his description of Armenian genocide as ‘a great international lie’, although the European Court of Human Rights later found that in his particular case the necessary incitement of hatred or violence had not been demonstrated.Footnote 15 In 2007, Arat Dink and Serkis Seropyan were given suspended prison sentences under Article 301 of the Turkish Penal Code for printing Hrant Dink's assertion that the killing of Armenians in 1915 was a genocide.Footnote 16 So, to gloss over the complexities of criminal liability slightly, asserting the same historical fact may be compulsory in one European country and prohibited in another. Throw in the strategically ill-thought-out libel case brought by David Irving against Deborah Lipstadt and her publisher,Footnote 17 whose thirty-two days of trial are available as a complete transcript online,Footnote 18 and this area alone provides much food for thought, and has attracted considerable academic attention.Footnote 19
Special Problems at the Intersection of Law, Religion and History
The focus of this article, however, is on particular problems posed by the intersection of law and history around a specific nexus, that of religion. I will seek to bring out these problems through discussion of three case studies, considering each at some length, before concluding by bringing out explicitly the challenges they illustrate.
The Consumer Protection from Unfair Trade Regulations 2008
We start with the surprisingly late demise of the Witchcraft Act 1735, section 4 of which punished specialist offences of pretending to exercise a range of supernatural powers. Although it was possible to bring criminal proceedings for frauds which seemed to fall within the provisions under general fraud law,Footnote 20 in the mid-twentieth century the specialist provision was seen as the most appropriate one to use in the historic case of Duncan,Footnote 21 discussed at length by Gaskill in his excellent monograph.Footnote 22
Helen Duncan was a spirit medium operating in war-time Portsmouth. She was initially arrested under the Vagrancy Act 1824 for an offence under section 4, which prohibited, inter alia, ‘pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive’. It was decided to proceed with the more serious offence under the Witchcraft Act 1735, section 4 of which punished those who ‘pretend to exercise or use any kind of Witchcraft, Sorcery, Inchantment or Conjuration, or undertake to tell Fortunes’.
Her conviction and imprisonment was a key part of the background to law reform. In 1951, following a campaign by the Spiritualists’ National Union, the Fraudulent Mediums Act 1951 replaced the Witchcraft and Vagrancy Act provisions in relation to ‘[acting] as a spiritualistic medium or [exercising] any powers of telepathy, clairvoyance, or other similar powers’, similar powers covering all activities within the professed practice of the ability to see beyond what are the normal powers of the human being. According to section 1 of the act, an offence was committed only when the defendant acted for reward, excluded ‘anything done solely for the purposes of entertainment’, and (crucially) required an intention to deceive.
One of the key features of the Fraudulent Mediums Act was the emphasis it gave to the belief of the defendant in what they were doing. It contrasted rather sharply with the way providers of spiritual services had sometimes been dealt with by the courts. My favourite example is Penny v. Hanson, in which an astrologer prosecuted under general fraud laws received short shrift from Justice Denman:
It is nonsense to suppose that in these days of advanced knowledge the appellant really did believe he had the power to predict a man's future by knowing at what hour he was born, and the position of the stars at the particular moment of his birth. No person who was not a lunatic could believe he possessed such power.Footnote 23
The Fraudulent Mediums Act survived substantial changes in criminal law, including even a wide-ranging Fraud Act in 2006. It did not, however, survive the Consumer Protection Regulations 2008, which abolished the existing offence, aiming to regulate such activity under the consumer protection regime. Although obviously not a central issue in those regulations, before they came into effect it was confirmed that an important change would be the removal of any intent to deceive requirement in relation to suppliers of services covered by the Fraudulent Mediums Act.Footnote 24 Service providers within occulture in particular saw the change as a serious threat to their activities, or sometimes as a threat to their religious freedom. It led directly to the foundation of the Spiritual Workers Association.Footnote 25 Why did the founders of this association, and indeed others who lobbied against this change, have cause to be concerned?
The removal of the intent to deceive requirement means false claims are primarily assessed on their truth or otherwise, rather than the sincerity of the person making them. This could lead to statements of religious or non-scientific fact being treated as statements which can be resolved, as any other, by legal actors making findings of fact. To quote Justice Douglas in the US Supreme Court in Ballard, ‘The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.’Footnote 26 In other words, therefore, when the Consumer Protection Regulations empower a Trading Standards Officer to determine whether a ‘fortune teller on Epsom Downs’Footnote 27 is acting lawfully, it raises profound issues of the authority of the state over individuals’ religious beliefs. Concern about the intersection of fraud, spiritualism and religious freedom had led directly to the Fraudulent Mediums Act 1951, but completely failed to be reflected in the Consumer Protection Regulations. Some historical reflection on the background to the 1951 legislation should have informed the 2008 legislative change.
The Babri Masjid / Ram Temple DisputeFootnote 28
The second case study concerns the Babri Masjid / Ram Temple dispute, also referred to as the Ayodhya dispute. Ayodhya is a North Indian town situated in the Faizabad district in the state of Uttar Pradesh. It has some connection with every major religion in India.Footnote 29 However, the important affiliations for our purposes are those that Hindus and Muslims have with the place.Footnote 30
For Hindus, Ayodhya existed as a religious centre for many centuries.Footnote 31 In particular, Ayodhya is seen by Hindus as the birthplace of the Hindu god Ram, who went on to rule Ayodhya as his kingdom.Footnote 32 These events in the age of Treta Footnote 33 (the distant past) were followed by a period during which Ayodhya disappeared. In the present age, the site was located by King Vikramaditya.Footnote 34 In Hindu traditional accounts, although not necessarily archaeological or secular historical accounts, he constructed a huge temple on the birth site of Ram,Footnote 35 which was later destroyed by Muslims in order to construct Babri Masjid in 1528, thus giving Hindu claims over the site temporal priority.Footnote 36 From the eighteenth century, Ayodhya was established as a major Hindu pilgrim centre in North India,Footnote 37 and by 1991 Bawa estimated there were six thousand Hindu temples in the area, with most of the trade and employment opportunities in serving pilgrims.Footnote 38
The site was also a significant religious centre for Muslim pilgrims. As with the Hindu narrative, the Islamic narrative of the history of Ayodhya stresses the antiquity of the connection between religion and the site, long before conventional history might do so. Muslims argue that their attachment to Ayodhya dates back to the pre-Islamic period, with the burials of Seth and Noah at Ayodhya.Footnote 39 Both burial sites continue to attract a substantial number of religious visitors.Footnote 40 Ayodhya was ruled by Muslim kingdoms from (it is likely) the eleventh century. The first Mughal emperor defeated the ruler of Ayodhya in battle, and his governor built a mosque in Ayodhya in 1528.Footnote 41 Ayodhya is considered a Khurd Mecca (small Mecca), because of the large number of Muslim holy persons, including Sufi saints and other revered religious figures, who are believed to be buried there.
The pre-1528 history of the site, then, differs considerably between the two communities. This is reflected in how they see the events of 1528. Hindu groups, particularly Sangh Parivar,Footnote 42 allege that Babar, the first Mughal emperor, destroyed a magnificent and ancient Ram temple in order to build his Babri Masjid. The Muslim view is that the mosque was built on an empty space, and that there is no evidence of the demolition of a Hindu temple.Footnote 43 With the beginning of direct rule of the area by the British crown in 1856, the stage was set for these and other community differences to begin to be worked out by litigation.Footnote 44
In 1857, a Hindu priest took a part of the Babri Masjid compound and constructed a chabutra, a raised platform for idols. This was opposed by local Muslims, and the dispute was initially resolved by agreeing to raise a wall between the mosque and the chabutra, which was later called Janmastan Temple. The compromise did not suit either party, with Muslims and Hindus litigating over development of the temple.Footnote 45 The dispute reached the District Court in 1886. The judge rejected proposals to develop the temple on three grounds. Firstly, whilst it was unfortunate that a Masjid had been built on land specially held sacred by the Hindus, the event had occurred 356 years earlier and it was too late to remedy the grievance. Secondly, any change could produce more harm and derangement of order than benefit. Thirdly, there were no documents to support the claim of the Hindu priest to be the landowner.Footnote 46 Both parties were requested to maintain the status quo.Footnote 47
During the final months of 1949, the controversy took an important new turn. A group of Hindu monks occupied a Muslim cemetery near the mosque, and ignited sacred fires to emphasize their claim that the area was originally a Hindu religious site.Footnote 48 Some days later, idols of Hindu gods including Ram were discovered inside the mosque. Although there is evidence that these had been placed there by human hands,Footnote 49 this was promoted as a miracle. As Gould observes, ‘this miracle story created a local sensation. Hindus and Muslims flocked to the Janmastan, the former to bear witness to the miracle, the latter to defend the Babri Masjid against desecration and seizure by the Hindus’.Footnote 50 As the dispute exacerbated local tensions, the local authorities ordered the gates of Babri Masjid to be locked and prohibited both communities from using it, on the basis that the dispute was likely to lead to a breach of the peace. A receiver was appointed to arrange for the care of the property in dispute, and took charge of the property in January 1950.Footnote 51 The dispute was then tied up in suits and counter-suits, decades passing without a hearing of the substantive case.
In the interim, Ayodhya had begun the process of transformation into a national controversy.Footnote 52 In 1984, a Hindu nationalist organization initiated a movement to ‘liberate’ the Ram Janmabhumi and rebuild a magnificent Ram temple at Ayodhya. In 1986 a Hindu intervener who was not a party in any of the main suits secured an order allowing him free entry into the building for prayer, which had not been permitted since the interim order of 1950. In his order, Judge Pandey stated:
After having heard the parties it is clear that the members of the other community, namely Muslims, are not going to be affected by any stretch of imagination if the locks of the gates are opened and the idols inside the premises are allowed to be seen and worshipped by pilgrims and devotees. It is an undisputed fact that the premises are presently in the Court's possession and for the last 35 years Hindus have an unrestricted right of worship as a result of the Court orders of 1950 and 1951 (19.1.50 and 3.3.51). The District Magistrate has stated before me today that members of the Muslim community are not allowed to offer any prayer at the disputed site. If this is the state of affairs, then there is no occasion for law and order problem arising as a result of the removal of locks. It is absolutely an affair inside the premises.Footnote 53
In consequence, there was a significant change in the site's status, from one that neither community was able to use as a place of worship to one that could be used by Hindus but not Muslims. This trajectory reached a violent apogee in 1992.
In October 1992 an organization of Hindu priests announced the resumption of religious voluntary work to rebuild Ram Temple from 6 December 1992.Footnote 54 Although there was some official effort to protect the mosque, this did not translate into security on the ground, despite a request by the Supreme Court. The Babri Mosque was demolished by 150,000 volunteers, who proceeded to build an ad hoc Ram temple on the site. After the demolition, the courts ordered the relaxation of restrictions on Hindu worship on the site,Footnote 55 in part because Ram was a ‘figure constitutionally accepted as the Lord by the builders of this nation and culture’.Footnote 56 The order was challenged before the Supreme Court, who directed maintenance of the ‘status quo’, that is to say, the former balance between Muslims and Hindus, with the site open to Hindu worship but not Muslim worship.Footnote 57
Although Babri Mosque had now been demolished, proceedings in the High Court were restarted in January 1996 and continued until judgment by the Allahabad High Court in September 2010. The protracted hearing resulted in three judgments totalling more than eight thousand pages.Footnote 58
All three judges noted the undesirability of the very long period which had passed before the unlocking order of 1986 could be resolved. Justice Sharma was perhaps the most blunt: ‘the disputed structure is not in existence, it has already been demolished’. There was a notable willingness to make findings of fact as to the history of the site: Justice Khan, for instance, found that the constructed portion of the premises under dispute had been built as a mosque under the orders of Babar,Footnote 59 and that no temple had been demolished for its construction.Footnote 60 Justice Sharma, on the other hand, found that such a temple had existed, that it had been destroyed in order to build a mosque and that, under Islamic law, ‘the disputed structure could not be a mosque as it was raised by force of arms on land belonging to the plaintiff deities’.Footnote 61
The majority of the court (that is, two of the three judges) ruled that the site should be partitioned into three parts, roughly two-thirds Hindu, one-third Muslim. Justice Khan stressed the sharing of the site between Hindu and Muslim worshippers since before 1855, and from this found that both communities were in joint possession of the entire premises in dispute, although for convenience they were using and occupying different portions. The three parties (Muslims, Hindus and a named Hindu sect) were declared joint holders until formal partition. Proposals for partition were required within three months, but some areas were set aside for the non-Muslim parties. Justice Khan was joined by Justice Argawal, who endorsed the tripartite division but was more specific about areas set aside for the Hindus. He also stressed the role of the government of India in making their land available to allow ‘separate entry … of the people without disturbing each other's rights’. The dissenting justice, Sharma, found that the building was not, under shariah, a mosque, and that the land remained owned by the Hindu deities in the (pre-existing) temple. Government attempts to extinguish the sacredness of the place were beyond its competence.
Immediately after the judgment, the Indian prime minister appealed for peace, and suggested that the status quo, under which Hindus could use the site for religious purposes but Muslims could not, would be maintained until the Supreme Court took up the case. In May 2011 the Supreme Court stayed the verdict, describing it as ‘strange and surprising’. It noted in particular that the High Court had granted a relief – partition – which had not been sought by any of the parties. Instead, all parties had sought exclusive rights over the entire precinct. The Supreme Court ordered the status quo to continue until the case was resolved by the Supreme Court. Supreme Court hearings began in February 2018, were suspended in March 2019 to attempt a court-ordered mediation, and resumed in August 2019. At the time of writing, proceedings are ongoing.
The Hindmarsh Island Bridge ControversyFootnote 62
The final case study comes from Australia. A development company purchased land on Hindmarsh Island, in the Murray River estuary, and sought permission to replace the existing ferry with a bridge. Planning approval was granted, subject to an environmental impact study. That study was completed quickly, and identified the need for an anthropological study. This was carried out by Rod Lucas, who in 1990 reported that existing records did not record mythological sites, but cautioned that consultation with indigenous groups, particularly of the Ngarrindjeri, was needed. Planning permission was granted, but subject to the condition that there be consultation with ‘relevant Aboriginal representative bodies’, which did not take place. As the project developed, a complex relationship arose between the development company, a state-owned bank and the state government. In 1994 a government-appointed archaeologist, Dr Neil Draper, completed his survey of Hindmarsh Island and the mainland foreshore, identifying a number of significant sites which should be protected under existing legislation.
In 1994, at the request of the Ngarrindjeri, the federal government intervened, with an emergency declaration stopping work until Professor Cheryl Saunders, a lawyer, reported on these sites. One group with whom Saunders consulted was composed of Ngarrindjeri women, who claimed the island was sacred to them as a fertility site and for other reasons that could not be publicly revealed. An anthropologist, Dr Dean Fergie, prepared an assessment of these women's claims which was submitted to Saunders. In the process, some of these cultural secrets were written down and sealed in envelopes marked ‘Confidential: to be read by women only’. The (male) minister for Aboriginal affairs received these with the assessment, and placed a twenty-five year ban on the project.
In February 1995 this decision was successfully challenged in the federal court by the development company. In the following month the shadow minister for the environment resigned after he had tabled some of the secret documents in parliament, having misrepresented how he had obtained them, and having not followed the instruction to keep them confidential and read by women only. In May 1995 a number of dissident Aboriginal women stated that the ‘secret women's business’ must have been fabricated, as they either had no knowledge of it or did not believe it. In June a Royal Commission was appointed, which reported in December. It made no use of the contents of the envelopes, but found that the ‘secret women's business’ was not authentic. The Royal Commission emphasized that the way the secrets were revealed gradually was suspicious; that the secrets were not documented in the anthropological record; that testimony given by two dissidents supported the allegation of fabrication; that the ‘secret women's business’ should (to be consistent) have led to objection to earlier barrages, which had not been objected to on that ground; and that one ground for the objection was based on a sacred story about the Seven Sisters constellation which was not part of Ngarrindjeri, as opposed to western Aboriginal, beliefs.
The Ngarrindjeri brought another application for federal heritage protection, and a female senator appointed Jane Matthews, a female judge, as reporter, so that the proponent women would be able to refer to knowledge limited to women. In 1996 there was a change of government, and the new government refused to appoint a woman to receive the report; it also became clear that Australian law would not allow the women to rely on material that was not open to disclosure to other parties. Rather than disclose it, the women withdrew their restricted material from consideration by Matthews. The federal government proceeded to pass specific legislation to ensure the bridge could proceed;Footnote 63 this legislation survived constitutional challenge on the basis of racial discrimination.Footnote 64
This was still not the end of the story. In the case of Chapman v. Luminis Pty Ltd (no. 5),Footnote 65 the developers, who had entered liquidation, sued a range of parties for financial loss suffered as a result of the delay in the building of the bridge from 1994 to 1999. The judge found against the developers, and in doing made findings critical of the Royal Commission decision. In particular, he considered that late and gradual emergence of sacred knowledge was not indicative of fabrication, that the lack of recording in the anthropological literature was not inconsistent with the material, and that the Seven Sisters story was plausible. The court dismissed the claims of fabrication, and found against the developers.
This decision was widely seen as a vindication of the claims to ‘secret women's business’. In 2010 a government minister endorsed the finding of 2001 that this was genuine in a ceremony at the foot of the bridge; and Ngarrindjeri elders then led a symbolic walk across the bridge.Footnote 66
Some Lessons
The first lesson, which I would draw from the Consumer Protection regulations, is that a lack of interest in history can result in an impoverishment of current law. Russell Sandberg, in his recent consideration of legal history through the lens of the employment status of ministers of religion,Footnote 67 argues that the modern law school culture suffers from ‘presentism’, a privileging of the present, and notes the decline of legal history in law schools over the last century. Legal history, however, has a powerful subversive potential, showing ‘that every line drawn in the law and everything the law holds as sacred is arbitrary and that the environment that students are socialised into is a historical construct’.Footnote 68 Stewart and Kiyani have made a similar point in their recent critique of the ahistorical nature of analysis of international criminal law, seeing understanding of the legal history of international criminal law as providing an important resource to reduce partiality.Footnote 69 The difficulties for lawyers seeking to engage historically with issues of law and religion do not justify their failure to do so. In particular, there are legal structures which may make it crucial to adjudicate between different conceptions of continuity, as well as tactically useful.Footnote 70 We see this in particular in the Ayodhya case study, where the question of whether or not a Ram temple had been destroyed in the sixteenth century was returned to throughout the protracted litigation. As Mehta puts it, ‘[e]ach of the contending parties, and there are at least four, evokes the status quo to establish the legitimacy of its claims’.Footnote 71
Secondly, the complexity of engaging with issues at the nexus of law, religion and history may tempt a state actor to seek to avoid doing so, in the hope that the dispute will be resolved by extra-legal mechanisms. The Ayodhya dispute shows the drawbacks of deferring engagement. For thirty-five years, from 1950 to 1985, the Ayodhya dispute remained a local dispute between a few members of two religious communities. There was no final legal resolution of the dispute before the 1992 demolition, and indeed the Supreme Court did not begin substantive hearings on the case until 2018. Delay has been described as the ‘pathology of the Indian legal system’,Footnote 72 and has been a long-standing cause of concern. Chodosh has suggested that the adversarial model is poorly designed to meet the needs of a rural population with widespread poverty, illiteracy and unfamiliarity with formal legal procedure, not least since most of it is conducted in the English language,Footnote 73 while Deshpande suggests that the legal system creates the opportunity for parties with a weak case to delay resolution against them.Footnote 74 Average delays in the civil process have been calculated at between ten and fifteen years,Footnote 75 and a similar level of delay can be found in cases before the higher judiciary.Footnote 76 However, in the Ayodhya dispute the delay was extended to forty-two years, from 1950 to 1992, without even a preliminary hearing.
These issues of continuity and deferring judgment come together in the seemingly technical issue of interim relief. Interim relief is an order granted by the court intended to protect the rights of a party until there has been a final determination of the substantive dispute. The practical importance of interim relief is considerable, with Bean suggesting that the English courts grant far more interim injunctions than permanent ones.Footnote 77 In the Ayodhya dispute, interim relief, literally, spanned generations. The interim relief of 1950–1 barred Muslims and Hindus from Babri Masjid; the 1986 opening of the locks, a variation of that interim relief, turned the space into a place of Hindu public worship. The fate of the site has, for generations, been dealt with as interim relief. Given that the purpose of interim relief is to protect the rights of a party, identifying the status quo that is in danger of being damaged if there is no interim relief has been an important part of the work of the courts. One of the significant constitutional issues raised by demolition in 1992 is the flouting of the authority of the courts in seeking to maintain some form of status quo before the full hearing.
Thirdly, once a legal actor commits to engaging with history, the nexus of law, religion and history may raise particular problems around sacred history. Writing on the Ayodhya dispute in 1990, Gopal concluded that the historical claims by the Muslim and Hindu communities ‘can find no sanction from history’, and stressed that while appropriation of history is a continual process in any society, ‘in a multi-religious society like ours, appropriations which draw exclusively on communal identities engender endless communal conflicts’.Footnote 78 History and archaeology have played a central role in the framing of the legal dispute over ownership and use of the site.Footnote 79 However, the sort of history which the different religious communities are asserting is particularly challenging. While the claims regarding the burial place of Noah are not easily susceptible to probing by secular historians, the Muslim arguments are predominantly based on a time frame with which such historians may find it comparatively easy to discover common ground. The ‘Old Earth Creationism’ of the Hindu arguments, with Ram having been born nine million years ago and the Ayodhya Temple having been built in 100 BCE,Footnote 80 is more challenging for a court which does not share that religious frame. As Mehta puts it, ‘two temporal registers, asymmetric and incommensurate, are entangled with each other – historic time and mythic time. The first is based on rules of evidence drawn from empirical detail, while the second provides a kind of habit within which belief and faith are mobilised’.Footnote 81 These different types of history may coexist not only in a case but also in the arguments put forward by a single party. In their discussion of the use of architecture in Ayodhya, Bernbeck and Pollock put it this way:
Why, in a case such as Ayodhya, in which many Hindu partisans are firmly convinced that a temple did exist under the mosque regardless of any ‘proof” and / or that the place is a holy one for Hindus, is archaeological evidence necessary? We suggest that archaeological testimony is primarily a tool to be used to try to convince other, more skeptical audiences (for example, the Indian Supreme Court) because it provides tangible evidence such as the physical remains of a building interpretable as a temple.Footnote 82
The Hindmarsh Island Bridge case shows that, even within a secular frame, different ways of conveying historical knowledge which arise from their religious context can pose real challenges to lawyers who seek to engage with historical information in a particular way.Footnote 83 The proponents of the ‘secret women's business’, and those who opposed them, all framed the debate in historical terms. The key legislation described its purpose as ‘the preservation and protection from injury or desecration of … areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition’.Footnote 84 The sociological question of whether an area was of particular significance to Aboriginals was not sufficient: that importance had to be in accordance with Aboriginal tradition.Footnote 85 Accordingly, the key question was whether the ‘secret women's business’ was a traditional part of the culture of the Ngarrindjeri. The proponents ran straight into two expectations as to how historical knowledge should be accessed.
The Royal Commission was strongly influenced by the absence of any record of the practice in the report by a male anthropologist who had carried out an in-depth study of the group in the 1940s; the rather reasonable comments by Dr Jane Jacobs that a male anthropologist walking into the tribe in the 1940s might not have directed his attention towards women's secrets, and that, even if he had, he would not have got very far, were not taken on board by the commission. The issue of gender-specific knowledge was hotly contested by anthropologists on both sides in the 2001 court case, and evaluating the anthropological evidence was an important part of the judgment.Footnote 86 To state it at its simplest, the problem here is that esoteric religious traditions may well be less well documented by outsiders than exoteric ones.
Additionally, women who claimed to have key evidence to resolve this important factual issue would only permit it to be shared with other women. A strong constitutional norm in Australia is that parties should have access to the evidence supporting another party's case; another norm, less historically entrenched, is that decision making should not depend upon the gender of the decision maker. The claims of the proponent women to secret knowledge could not be reconciled with these norms, and attempts to accommodate the women led to significant political, and indeed legal, problems. The decision not to accommodate them, while it can be seen as ‘a denial of natural justice’,Footnote 87 can also be seen as compliant with a broader norm. As Harris puts it, the case shows ‘the essential incompatibility of the two systems of law – the emphasis upon disclosure and the law's need to know against the essential secret nature of some of the beliefs of Aboriginal peoples’.Footnote 88
To conclude, the nexus of law, religion and history poses some particular challenges for legal actors. These legal actors need to resist the temptation not to engage with historical issues, not least because it is sometimes essential in the light of the internal dynamics of the legal process. A failure to confront the historical dimension also impoverishes the formulation of legal answers to legal problems. For scholars, the existing movement to reinvigorate the understanding of the interaction between law and history needs to take account of the particular challenges of sacred history. Such sacred histories may be mythical, esoteric and gendered in ways which are particularly difficult to slot into lawyerly understandings of history and evidence.
