The Law’s Apprehension of Religion as a Legal Fiction

This article addresses issues surrounding the way in which law apprehends religion in the judicial context. The first part of the article proposes the notion of legal fiction as a theoretical lens through which to view the law’s apprehension of religion. It is argued that this highlights and articulates a useful set of ideas about the social-symbolic process of the law’s interaction with religion. The second part of the article applies these theoretical ideas through an in-depth discussion of three cases: Ktunaxa Nation v. British Columbia, Multani v. Commission scolaire Marguerite-Bourgeoys, and Bentley v. Anglican Synod of the Diocese of New Westminster. The discussion of these cases demonstrates the descriptive and critical possibilities of reframing the law’s apprehension of religion in terms of legal fiction