Tag Archives: Comparative Law and Religion

Law and Religion Australia

Professor Neil Foster at the University of Newcastle (Australia) has launched a new blog, Law and Religion Australia. The blog will cover mostly Australian issues — but which law and religion issues are purely domestic, now? — and will promote the cause of religious freedom. Looks very worthwhile. Welcome to the Blogosphere!

Aroney on Freedom of Religion as an Associational Right

The latest issue of the University of Queensland Law Journal is devoted entirely to issues of federalism and freedom of religion in Australia.  One article by Professor Nicholas Aroney, Freedom of Religion as an Associational Right, is particularly informative.  You can read the article in its entirety here.

In his article, Professor Aroney argues that the religious freedom clauses of the Australian Constitution (section 116), which were modeled after the American First Amendment, should be interpreted to protect not only individual rights, but also communal or associational rights.  In support of this contention, Professor Aroney provides an impressive textual and historical analysis of section 116.  He further shows how this interpretation is in accord with international law.

According to Professor Aroney, correctly interpreting section 116 is of fundamental importance, because to interpret it as protecting merely individual rights has the potential to severely weaken religious freedom. Here is Professor Aroney (footnotes omitted):

Efforts to impose an individualistic view of human rights … continue to be made by groups such as the Discrimination Law Experts Group, who argue that the rights of religious organisations engaging in ‘public sphere activities’ should simply be trumped by the rights of individuals ‘to be treated in a non-discriminatory way.’ The Public Interest Law Clearing House and the Human Rights Law Resource Centre have argued similarly, maintaining that permanent religious exceptions to antidiscrimination laws facilitate and condone discrimination by protecting ‘traditional social structures and hierarchies’. Although the context is that anti-discrimination laws apply only in certain ‘public’ contexts, the reasoning is not so limited. These arguments are not unlike that of Stephen Macedo, who advocates that modern liberalism must ‘constitute the private realm in its image’ by forcing citizens ‘to observe its limits’ and ‘pursue its aspirations’. Such persons are to be actively coerced, Macedo candidly asserts, ‘to help ensure that freedom is what they want’, even in ‘their most “private beliefs”’.

 The underlying individualism of this line of argument has been made clear by Margaret Thornton, who has argued that although the ICCPR protects the right to exercise freedom of religion ‘in association with others’, this right not only has to be balanced against the competing rights to equal treatment and non-discrimination, but all such rights need to be understood, fundamentally, as the rights of human beings – not of corporations – and so it is a ‘logical fallacy to extrapolate from an individual’s private beliefs to an impersonal for-profit corporation’. Thornton’s argument shows the weakness of religious freedom rights if they are conceptualised in reductively individualistic terms. This is because one would have to show, first, that certain individuals have particular religious convictions that are legally protected and, second, that these same individual rights are being expressed through the religious corporation’s rules or practices. If religious rights are conceptualised as inherently ‘private’ in this sense, it will be that much more difficult to establish that such rights are really being exercised as private rights in various domains of ‘public’ or ‘quasipublic’ life. But on the contrary, as has been seen, international human rights principles, while certainly premised on the rights of the ‘human person’, are not exclusively concerned to protect only individual rights or only private expressions of religious conviction.

Another problem with individualised conceptions of human rights in this domain is that such rights, although originally conceived as rights against the state, can nonetheless ‘double up as rights against everyone’. Accordingly, as Julian Rivers has shown, there are some for whom it is not sufficient that an individual has a right of ‘exit’ from his or her religious community. Rather, there is evidence ‘of a growing assumption that everyone who wishes should be able to join any religious body’ and that ‘membership tests are suspect’. The underlying assumption, in other words, is that ‘the preservation of religious identity on the part of civil society groups needs justification against the individual who does not share that identity’, even though to adopt such an approach ‘is potentially destructive of the identity of [all] non-State collectivities’. For if any individual can decide whether he or she qualifies for membership of an organisation, no organisation will be able to maintain its distinctive identity.

This reductio ad absurdum suggests that a radical individualist conception of religious liberty is simply incompatible with the existence of religious associations and communities as distinguishable groups within a society. Against such a view, William Galston has observed:

 It is not obvious as an empirical matter that civil society organisations within liberal democracies must be organised along liberal democratic lines… A liberal policy guided … by a commitment to moral and political pluralism will be parsimonious in specifying binding public principles and cautious about employing such principles to intervene in the internal affairs of civil associations. It will rather pursue a policy of maximum feasible accommodation, limited only by the core requirements of individual security and civic unity. That there are costs to such a policy cannot reasonably be denied. It will permit internal associational practices (e.g. patriarchal gender relations) of which many disapprove. It will allow many associations to define their membership in ways that may be viewed as restraints on individual liberty … Unless liberty – individual and associational – is to be narrowed dramatically, however, we must accept these costs.

 A reductively individualist conception of religious freedom is obviously opposed to the capacity of such groups to determine their own conditions of membership, but an excessively narrow associational conception may also have this effect, for there are many social groupings and traditional communities, including religions, in which membership does not initially arise by deliberate choice but by birth and circumstance. Whether voluntaristic or otherwise, unless such associations and communities are going to be understood, following Thomas Hobbes, as ‘worms in the entrails’ of the body politic, we need to recognise, as Harold Laski argued, that they are ‘as real, as primary, and self-sufficing as the whole [society]’. This does not mean of course that communal religious rights must always prevail. But it does mean that they ought to be treated with the same respect as the rights of individuals. As such, from a liberal point of view, what is most crucial in order to protect individuals is not the right to join (or remain) within a group, but the right to exit it. On this approach, the question of the legitimacy of a law which regulates a religious association becomes one of determining what conditions, if any, must accompany an effective exit right, understood to include the rights to associate, disassociate or not associate with a particular religious community on terms offered by that community. Alternatively, from a more communitarian point of view, what matters is that a religious group genuinely benefits its members and does not inappropriately interfere with the legitimate interests of those outside the group. These are large questions, of course, which lie beyond the scope of this article, the point of which has been to establish the associational and communal dimensions of religious freedom as a matter of principle.

 

President Sisi’s Speech

Abdel_Fattah_el-SisiThe Internet is buzzing with news of a speech last week by President Abdel Fattah el-Sisi of Egypt (left) on the need for a “religious revolution” in Islam. Speaking at Cairo’s Al Azhar University, the most important center of Islamic learning in the Sunni world, Sisi admonished the assembled scholars to revisit Islamic law, or fiqh, in order to calm the fears of the non-Muslim world. According to a translation at Raymond Ibrahim’s site, Sisi said:

I am referring here to the religious clerics.  We have to think hard about what we are facing—and I have, in fact, addressed this topic a couple of times before.  It’s inconceivable that the thinking that we hold most sacred should cause the entire umma [Islamic world] to be a source of anxiety, danger, killing and destruction for the rest of the world.  Impossible!

That thinking—I am not saying “religion” but “thinking”—that corpus of texts and ideas that we have sacralized over the years, to the point that departing from them has become almost impossible, is antagonizing the entire world.  It’s antagonizing the entire world!

Is it possible that 1.6 billion people [Muslims] should want to kill the rest of the world’s inhabitants—that is 7 billion—so that they themselves may live? Impossible!

I am saying these words here at Al Azhar, before this assembly of scholars and ulema—Allah Almighty be witness to your truth on Judgment Day concerning that which I’m talking about now.

All this that I am telling you, you cannot feel it if you remain trapped within this mindset. You need to step outside of yourselves to be able to observe it and reflect on it from a more enlightened perspective.

I say and repeat again that we are in need of a religious revolution. You, imams, are responsible before Allah. The entire world, I say it again, the entire world is waiting for your next move… because this umma is being torn, it is being destroyed, it is being lost—and it is being lost by our own hands.

Some are praising Sisi for his bravery. That’s certainly one way to look at it. When Sisi calls for rethinking “the corpus of texts and ideas that we have sacralized over the years,” he may be advocating something quite dramatic, indeed. For centuries, most Islamic law scholars – though not all – have held that “the gate of ijtihad,” or independent legal reasoning, has closed, that fiqh has reached perfection and cannot be developed further. If Sisi is calling for the gate to open, and if fiqh scholars at a place like Al Azhar heed the call, that would be a truly radical step, one that would send shock waves throughout the Islamic world.

We’ll have to wait and see. Early reports are sometimes misleading; there are subtexts, religious and political, that outsiders can miss. Which texts and ideas does Sisi mean, exactly? Fiqh rules about Christians and other non-Muslims, which often insist on subordination? Some argue that, notwithstanding the speech at Al Azhar, Sisi has done relatively little to improve the situation of Coptic Christians. And calling for the opening of the gate is not necessarily progressive. Although progressive Muslim scholars endorse the opening of the gate in order to adapt fiqh to modernity, Salafist groups wish to open the gate in order to discard centuries of what they see as un-Islamic traditions. Opening the gate may be a signal for fundamentalism, for a return to the pure Islam of the Prophet and his companions. I don’t imply Sisi is a fundamentalist, of course. I’m just saying one needs to be alert to the nuances.

Still, Sisi’s remarks do suggest he means a rethinking of Islamic law to adapt to contemporary pluralism. This is definitely worth watching.

Kwall, “The Myth of the Cultural Jew”

This February, Oxford University Press will release “The Myth of the Cultural Jew: Culture and Law in Jewish Tradition” by Roberta Rosenthal Kwall (DePaul University College of Law).  The publisher’s description follows:

The Myth of the CulturalA myth exists that Jews can embrace the cultural components of Judaism without appreciating the legal aspects of the Jewish tradition. This myth suggests that law and culture are independent of one another. In reality, however, much of Jewish culture has a basis in Jewish law. Similarly, Jewish law produces Jewish culture. A cultural analysis paradigm provides a useful way of understanding the Jewish tradition as the product of both legal precepts and cultural elements. This paradigm sees law and culture as inextricably intertwined and historically specific. This perspective also emphasizes the human element of law’s composition and the role of existing power dynamics in shaping Jewish law.

In light of this inevitable intersection between culture and law, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition argues that Jewish culture is shallow unless it is grounded in Jewish law. Roberta Rosenthal Kwall develops and applies a cultural analysis paradigm to the Jewish tradition that departs from the understanding of Jewish law solely as the embodiment of Divine command. Her paradigm explains why both law and culture must matter to those interested in forging meaningful Jewish identity and transmitting the tradition.

Sattam, “Sharia and the Concept of Benefit”

This February, I.B. Tauris Publishing will release “Sharia and the Concept of Benefit: The Use and Function of Maslaha in Islamic Jurisprudence” by Abdul Aziz bin Sattam (Imam Muhammad bin Saud Islamic University).  The publisher’s description follows:

The idea of maslaha has a rich history in classical legal thought and literature. Conventionally translated into English as ‘general benefit’ or ‘general interest’, it has been the subject, over many centuries, of intense argument in Muslim legal manuals about how the concept should be constructed and how it might be interpreted. Some celebrated scholars have even elevated its status to an independent legal source; while other prominent jurists have spoken of the special strictures which need to be applied to maslaha when considering it within the overall framework of Islamic law. In this thorough and original treatment of the concept, Abdul Aziz bin Sattam offers the first sustained examination of one of the most important tenets of Sharia. Seeking to illuminate not only the intricacies of its application, but also the wider history which has shaped it, the author examines its foundations, theoretical underpinnings and the key debates in both classical and contemporary texts. His book will be a vital resource for all those with an interest in Islamic law, whether of the medieval or modern periods.

“Islam and the European Empires” (Motadel, ed.)

Last month, Oxford University Press released “Islam and the European Empires” edited by David Motadel (University of Cambridge).  The publisher’s description follows:

Islam and the European EmpiresAt the height of the imperial age, European powers ruled over most parts of the Islamic world. The British, French, Russian, and Dutch empires each governed more Muslims than any independent Muslim state. European officials believed Islam to be of great political significance, and were quite cautious when it came to matters of the religious life of their Muslim subjects. In the colonies, they regularly employed Islamic religious leaders and institutions to bolster imperial rule. At the same time, the European presence in Muslim lands was confronted by religious resistance movements and Islamic insurgency. Across the globe, from the West African savanna to the shores of Southeast Asia, Muslim rebels called for holy war against non-Muslim intruders.

Islam and the European Empires presents the first comparative account of the engagement of all major European empires with Islam. Bringing together fifteen of the world’s leading scholars in the field, the volume explores a wide array of themes, ranging from the accommodation of Islam under imperial rule to Islamic anti-colonial resistance. A truly global history of empire, the volume makes a major contribution not only to our knowledge of the intersection of Islam and imperialism, but also more generally to our understanding of religion and power in the modern world.

Subway Ads and Mental Maps

Many thanks to Mark Movsesian and Marc DeGirolami for letting me return with a couple of guest posts.

I’ve been intrigued by some recent posts on this blog and how they confirm my long-held view that the normative decisions we make with respect to the law’s treatment of religion are deeply intermeshed with cognitive choices we make — how we “see” and understand religion.  Religious phenomena don’t fit easily or self-evidently into the mental maps by which we divide the pieces of the secular world.  All we can do is approximate, and those approximations matter.

subway1Let’s begin with Mark’s fascinating and wonderfully observant recent post about an ad for the Marble Collegiate Church that he recently saw in a New York City subway.  The ad itself was unremarkable, touting Marble Collegiate as “Church the way you always hoped it could be.”  (Marble Collegiate itself is more remarkable, founded in 1628 as a Dutch Reformed congregation and serving in the 20th century as Norman Vincent Peale’s pulpit for some 50 years.)  But the ad included a prominent disclaimer form the MTA (the local transit agency) taking up the bottom third of its precious space: “This is a paid advertisement sponsored by Marble Collegiate Church.  The display of this advertisement does not imply MTA’s endorsement of any views expressed.”  What gives? Continue reading

Guerres de Noël

US-LIFESTYLE-HOLIDAY-DECORATIONS

I used to think that the annual Christmas Wars were strictly an American thing, like corn dogs and and attorneys’ contingency fees. Only in America, I thought, do people seriously argue about whether to allow Christmas trees in public parks or to permit public school choirs to sing “Silent Night” at holiday concerts. The issues become more and more bizarre. This year, a Maryland school district decided to remove even a reference to “Christmas” in the school calendar–as though the reference amounted to religious oppression and removal would make people forget what holiday comes round every 25th of December.

Our Supreme Court, whose Establishment Clause jurisprudence focuses on factors like the presence of plastic reindeer and talking wishing wells, bears much blame for this state of affairs. But judges in other countries seem eager to replicate our model. Last week, a French administrative court ruled that the town of La Roche-sur-Yon–located, appropriately, in the historically royalist, counter-revolutionary region of the Vendee–must remove a Christmas crèche from its city hall. The court held that the crèche violates the 1905 French Law on the Separation of Church and State, which, according to the court, forbids religious displays like crèches on public property. According to news reports (in French), the court concluded the display was incompatible with the principle of state religious neutrality, or laïcité.

I don’t know enough about French administrative law to evaluate the decision. What I find fascinating, as an outsider, is how closely the French debate tracks the American. The lawsuit seeking removal of the crèche was brought by a secularist group called the “Fédération de la Libre Pensée,” which, I gather, is analogous to American groups like the Freedom from Religion Foundation and American Atheists. The group argues that the crèche “fails to respect the conscience of the citizen” by “imposing” on him a religious display whenever he enters city hall. In response, the town’s supporters evoke cultural traditions more than Christianity. Religious neutrality, they say, does not require abandoning longstanding French customs. What’s next, they ask? Church bells and Christmas lights? They’ve started a popular hashtag campaign, #TouchePasAMaCreche.

Each side has to live with its ironies. Notwithstanding the rhetorical commitment to laïcité, French law allows a great deal of entanglement between church and state–more, in some respects, than we would tolerate in the US. (Guess who owns Notre Dame and all other church buildings that existed as of 1905? Hint: it’s not the Church). On the other hand, the defense of tradition in this case rings somewhat hollow. La Roche-sur-Yon only began displaying the crèche 22 years ago.

The city has vowed to appeal the decision. I’ll keep you posted. Meanwhile, here’s a thought. If France has adopted the Christmas Wars, can Black Friday be far behind?

Photo: Le Figaro

Bouasria, “Sufism and Politics in Morocco”

This January, Routledge Press will release “Sufism and Politics in Morocco: Activism and Dissent” by Abdelilah Bouasria (George Mason University).  The publisher’s description follows:

Presenting a political history and sociology of Moroccan Sufism from colonialism to the modern day, this book studies the Sufi model of Master and Disciple in relation to social and political life, comparing the different eras of acquiescent versus dissident Sufism.

This comparative fieldwork study offers new perspectives on the connection between the monarchy and mystic realms with a specific coverage of the Boutchichi order and Abdessalam Yassine’s Al Adl Wal Ihsane, examining the myth of apolitical Sufism throughout the Middle East and North Africa. Drawing on Michel Foucault and James Scott, this book fuses thinking about the political dimension of Sufism, a “hidden transcript,” involving power struggles, patronage and justice and its esoteric spiritual ethics of care.

Addressing the lacuna in English language literature on the Boutchichi Sufi order in Morocco, this book will be of interest to students and scholars of Islamic Studies, Comparative Politics and the MENA region.

Francavilla, “The Roots of Hindu Jurisprudence: Sources of Dharma and Interpretations of Mimamsa and Dharmashastra”

In January, Oxford University Press will release “The Roots of Hindu Jurisprudence: Sources of Dharma and Interpretations of Mimamsa and Dharmashastra” by Domenico Francavilla (Institute of Canon Law and Comparative Religious Laws, Lugano). The publisher’s description follows:

This book is a detailed, innovative, and comprehensive examination of the sources of dharma, which is among the key concepts in Hindu jurisprudence. The book is also an introduction to the main topics of Hindu legal theory. Underlying the work of authors of various texts of Sanskrit juridical literature, including the dharmashastra, commentaries, andnibandhs, as well as of interpreters of questions concerning dharma, is a theory of the sources of dharma. Understanding the theory requires in-depth examination of the basis of the authority of different sources and of the issues that arise in case of conflict. The book begins with a detailed analysis the concept of dharma itself and the general problems concerning the knowledge of dharma (chapters 1-2). Then it studies the arguments used in the literature to establish the authority of sources (chapters 3-5). It pays special attention to the authority of smrti andsadâcâra, which are the two crucial sources in the practical functioning of the system. It examines the theory of sources of dharma as reconstructed mainly through an analysis of Medhatithi’s commentary on Manu II.6-15 and of thesmrtipada of the Tantravarttika of Kumarila Bhatta, a pivotal text in the Mimamsa philosophical tradition. It concludes with a look at wider issues of legal theory, the acceptance of universal and particular authorities in Hindu jurisprudence, the role of rulers, and the law in practice.