The Courts and the Colonies: The Litigation of Hutterite Church Disputes

Jay Newman is a professor of philosophy at the University of Guelph. His
books include Inauthentic Culture and Its Philosophical Critics and
Biblical Religion and Family Values.

When conflict within a religious community leads a group within that
community to turn to the legal apparatus of the civil state for
resolution of the problems, issues arise that have long challenged
students of religious liberty and church–state relations. Alvin J.
Esau, a University of Manitoba law professor, focuses in this lengthy
study on a particularly difficult case of this kind, one involving a
lawsuit brought by Hutterite leaders against fellow Hutterites. In his
detailed discussion of all the relevant litigation, Esau emphasizes
complexities of reconciling respect for the “inside law” of a
largely isolated religious community with dependence on the “outside
law” of a civil state trying to respect religious freedom but
reluctantly drawn in to internal communal struggles. Esau himself became
alienated from a conservative Mennonite community partly because of his
decision to pursue a vocation in the “outside law,” and a marked
feature of his analysis is his earnest endeavour to maintain an approach
to the complex legal, political, and theological issues here that is
balanced as well as practical.

After introductory comments on the Hutterites and the related Bruderhof
community, Esau offers nine chapters in which he analyzes in
excruciatingly precise detail the history of the litigation on which he
is focusing, at the centre of which is the case of Lakeside Colony v.
Hofer. Even most students of religious liberty and church–state
relations will find this material to be extremely tiresome. Most readers
will deem the critical chapter to be the final one (Chapter 12), in
which Esau reflects more broadly on the strengths and weaknesses of
various ways of conceiving of the relationship between a religious
community’s “inside law” and the civil state’s “outside
law.” Esau has some interesting things to say in this final chapter,
but what he says will be of interest mainly to those in the Anabaptist
tradition, as he appears to have extremely little familiarity with—or
interest in—mainstream and even classical philosophical, theological,
sociological, and psychological literature on the wider issues being
addressed.